E first came to Family Court in 2008, when M was 2, to obtain an order of protection against her child's father, who had left in anger. He taunted E with threats to spirit away their son to an undisclosed location out of New York State. E learned she had to file for custody and support, beginning what has become a nearly half-decade's pursuit. Obtaining a support order, which provides for M's well-being, took nearly a year.
E petitioned the court for permission to move out of state—which would affect her custody arrangement with her estranged partner—in November 2009. The case proceeded through June 2010, when it was continued until September 2010. When E returned to Family Court that fall, she learned that the referee hearing the case had been transferred from Manhattan Family Court to Brooklyn Family Court, and a new referee had to be assigned. A new hearing was set for June 2011—a year and a half after E's first petition.
E's child's father has repeatedly filed petitions and motions to delay the case, according to E. (The court does not limit the number of petitions parties may file on their own behalf.) She in turn has filed petitions to protest missed child support payments and other matters. Confusion and deception over a complicated inheritance in the child's father's family—his income affects the support he is ordered to pay—has meant protracted hearings and additional delays. Absences in court by the child's court-appointed law guardian have added extra months of adjournments.
The court's protocols became part of her adversary's strategy. Under Family Court rules, if a civilian appears at a hearing without a lawyer, he or she is asked by the judge if the person wishes to proceed pro se or prefers that a lawyer be obtained. If a request is made for a lawyer, the hearing is rescheduled four to six weeks out.
Protocol permits this process to repeat up to three times before the actual proceedings begin—months of time, treading judicial water. At every new hearing, E says, her son's father asked for a lawyer, for each of the three allotted times, adding up to six months of stalling time to each proceeding—and it's all quite legal.
Both court and agency
Family Court exists to advance and protect the rights and safety of children. It is meant to operate "as a special agency for the care and protection of the young and the preservation of the family," according to the Family Court Act, adopted by the New York State Legislature in 1962. "Our focus is the child. We're here to protect the children," says 27-year Family Court veteran Joseph Radice, first deputy clerk of Manhattan Family Court.
The court is distinct from criminal and civil court. It is a kind of hybrid, containing elements of each judicial model. Civil matters like child support and custody are heard and settled in Family Court. So are cases that deal with child abuse and neglect, domestic violence, and crimes committed by the young.
Both fish and fowl, civil and criminal, Family Court has a mandate that toggles between advocacy—for the children and families whose cases populate the court's dockets—and adversarial contests in which the meting out of justice means a win for one party and a loss for the other.
Family Court actually operates like four court systems in one, with separate courtrooms for cases involving alleged abuse or neglect of children, custody and visitation rights for parents, child support, and juvenile justice. Of the four specialties, the most heavily used are, curiously, the lowest profile: The courtrooms that address issues of custody and support together hear nearly three-fourths of all Family Court cases each year.
Together, the four Family Court tracks annually handle more than 80,000 cases, on average, in New York City. A case, of course, can include multiple children, so the caseload is only a rough measure, and most likely an underestimate, of the total number of children in Family Court's orbit.
Amid that massive caseload, waiting is elemental. Cases called for the morning may be heard hours late if more urgent matters arise—or put over until after the official lunch hour, from 1 to 2 p.m., if the morning docket runs long. Cases can be called only to be adjourned when a lawyer, social worker or a law guardian representing the child is busy in another courtroom in the building and misses the "time certain." Cases can also be called and adjourned when paperwork is missing—which is often—or when witnesses haven't been properly served or opposing lawyers disagree as to the purpose of the court meeting: hearing or trial.
For example, in a juvenile delinquency hearing in Manhattan, a 15-year-old-boy in a blue flannel shirt charged with robbery and threatening a witness watches in silence as the city's attorney asks the ACS caseworker for paperwork. The caseworker has the original document but no copies, so a clerical worker is sent off to make them.
The prosecutor, waiting in turn for the documents, says to the judge and the defense attorney, "Let's do the fact-finding before the disposition." (In juvenile delinquency proceedings, dispositions are the equivalent of trials.)
The defense attorney looks up from his stack of folders and says, "This is technically paroled"—because the boy is already in detention—"We're not on trial today." The judge looks shocked: "Are you telling me you're not ready?"
The defense attorney explains that the case was not scheduled for trial today. The prosecutor interrupts, saying, "We had extensive discussion at the last court date," and that the defense attorney complained then that the time allotted for the current session, 45 minutes, wouldn't be enough time to present the evidence.
The defense attorney, shocked, says, "That's not true!"— accusing the city lawyer of making up the prior conversation. The prosecution appeals to the judge: "It's very simple, Your Honor, a one-witness trial."