UNDER DISCUSSION

  • Fixing Family Court

Custody Battle Delays Mean Kids Grow Up in Family Court

A shortage of judges means some children and their families spend years in the system, exacerbating whatever problems brought them there in the first place.

Jason was three years old when his family entered the family court in 2007.

They're still there.

His parents sought the court’s help in deciding with whom Jason would live and when he'd visit the other parent. By June 2008, it became clear that these parents could not settle their differences. As a result, the court selected a psychologist to conduct a forensic evaluation of Jason (whose name has been changed here to protect him) and his parents. Such evaluations are often ordered in custody and visitation cases in order to provide the judge with a neutral evaluation of the parties. Jason’s report was completed and submitted to the court in December 2010, a year and a half after it was ordered.

The initial set of trial dates were scheduled for June 2011. However, the assigned judge left the family court shortly thereafter and the matter had to be reassigned. Due to a conflict in the newly assigned judge’s existing calendar, the June trial dates were scrapped and new trial dates were chosen for October 2011.

Then the new judge was transferred to another specialty, and another judge was chosen to sit in the court part overseeing Jason's case. The trial dates were scratched once more in order to give the third judge time to prepare to hear the case. Again, following numerous conferences that still did not settle the case, the judge set trial dates for June of 2013.

But the same judge ended up vacating those June 2013 dates and the trial was rescheduled for June 2014. But I was recently informed that the judge currently assigned will be taking over a new part and it remains uncertain whether the trial dates will be kept.

Jason’s case is not a complex one. However, there have been 42 court appearances and three sets of trial dates scheduled and then vacated. Three judges have handled the case and a fourth will soon take it over. The case is tentatively scheduled for trial in June of 2014, three years after trial was originally scheduled to begin, and seven years after the action was initiated.

While Jason's case is extreme, lengthy delays in custody and visitation trials are the norm, not the exception.

Certainly, delays can be caused by parents who use the already congested family court to harass the other parent through frivolous litigation; even after a decision is made on the original case, a parent might file supplemental petitions until the child reaches the age of majority.

Sometimes litigation can lag as a result of lengthy forensic evaluations—this explained one season of delays in Jason’s case. Multiple evaluations can add years to a case, often unnecessarily. Despite recent efforts by the court to reform the process, often there is insufficient direction to the evaluators to keep their screening within the confines of the needs of the particular case, triggering tangential investigation. The result is often unnecessary or excess cost and delay.

However, quite often, delays are not the fault of the parents or evaluators but can be blamed on family court itself. As a result of these overlapping issues, children are growing up in family court.   

Perhaps the largest issue with the current family court system, as evidenced by Jason’s case, is the high turnover and shortage of family court judges. Despite the fact that case filings in New York City now exceed 250,000 per year, an increase of 90 percent over the past 30 years, the number of family court judges has remained at 47 for more than two decades.

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Courting Crisis

Read City Limits' 2012 investigation of family court.

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In Brooklyn, custody and visitation cases are generally handled by civil court judges who are loaned to family court for one or two years. As a result of the judicial turnover, trials are frequently delayed in order for the new judge to become familiar with not only the law but the case as well. In addition, if a judge leaves and the case is transferred to another part, trial dates are usually vacated as the new judge often cannot fit the new case into his or her existing calendar.

While the family court strives to safeguard the best interests of the child, court delays counter these efforts. Case law and psychological literature are replete with court decisions espousing the principle that delay is in fact adverse to the best interests of the child. Clearly, seven years is a very long time in the life of a child like Jason. Postponing decisions due to court delay is contrary to the court’s missive of ensuring a child’s welfare and best interest and ignores the fact that once Jason’s childhood years have passed, they are gone forever.

The delays that children and families experience in family court due to a shortage of judges and resources and lack of support are arguably just as harmful as the issues which may have brought the family to court in the first place, including the resulting physical or psychological harm. The current model of justice in New York City contributes to the harm of the children it is designed to protect by subjecting them to years of ambiguity in their family situation and the looming specter of litigation.   

Chief Judge Jonathan Lippman, backed by the New York City and New York State Bar Associations, has called for an increase in the number of family court judges. During the Legislature’s 2014 session, this proposal will hopefully receive greater priority than such proposals have received in the past. In fact, both the New York State Senate and Assembly House Bills included the Judiciary’s request for 20 additional family court judges. But the budget process is not over yet and the Senate and Assembly are now negotiating with each other and the governor.

By now, Jason has spent two thirds of his young life in family court. It is critical that the issue of children growing up in family court not only be acknowledged but actually be addressed in the adopted budget by providing funding for additional family court judges.

Contributions by Veronica Kapka, Post-Graduate Fellow, the Children’s Law Center of New York. The views expressed are those of the authors and not the organization.




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