She extended Family Court hours to include evening sessions, on the basis of rising projections of cases. Under Kaye's leadership, judges began to specialize in distinct areas of Family Court practice. Proceedings, until then sequestered from view, were opened to the public.
Because creating judgeships would have required changing state law, Kaye instead created the position of judicial referees to hear cases of custody and visitation. She additionally oversaw the creation of community courts, in neighborhoods as disparate as Red Hook and Harlem, to monitor compliance with drug treatment and mental health plans, for example, and to centralize access in underserved communities to a spectrum of legal and social services.
Another major improvement in the past decade concerns children whisked into emergency foster care before a petition can be heard in Family Court: Prior to 2005, ACS routinely removed children from the homes of women who were victims of domestic violence, basing its actions on the theory that children could be at imminent risk. A class action lawsuit, Nicholson v. Scoppetta, challenged this practice. Ultimately, a ruling by Kaye forced a serious discussion of what actually constitutes neglect and established the need for a court order before a child can be removed from the home.
In practice, this means that ACS must request a child's removal in Family Court. Parents who are present in the court have a voice in those proceedings; they can challenge the removal and request the return of their children within three days of their removal.
This reform led to steep declines in the practice of simply removing kids at will, without official approval. It also gives families a chance at mediation, via the family team conference, before a case goes before the judge.
Another major advance concerns juvenile justice: Knitting together youth justice cases with those that concern abuse, neglect and a child's broader well-being affords more humane treatment for New York City's youth. Recent initiatives to bring youths in juvenile justice facilities closer to their home communities and innovative hybrid court models marry the practice and philosophy of Family Court with the statutory responsibilities of New York State criminal court.
The Staffing Stalemate
Eighteen years later, Kaye's reform agenda clearly has had an effect. The referees, for instance, play an essential role in keeping Family Court from drowning in its caseload. Other changes didn't live up to their billing. Her efforts to speed up court proceedings show little impact in today's courtrooms. Evening hours became too expensive in the post-2008 fiscal atmosphere and were scrapped. And some reform ideas—like having different judges specialize in different aspects of family law—had unintended consequences.
"The law wasn't as complicated before people specialized. It's apples and oranges," says Richardson-Mendelson, current head of the Family Courts. "The law has changed dramatically, and the obligations of the court have changed tremendously as well."
Much of the persistence of Family Court's problems can be chalked up to the issue that Kaye tried to navigate around: judicial staffing. But the statutory limit is only one part of the problem. Judgeships to which the system is, right now, entitled have disappeared.
Of 11 judges legally assigned to Manhattan Family Court, only eight now sit on the bench, a court attorney there says. Of 47 Family Court judgeships citywide, eight vacancies will exist in 2012—and it's only April. No additional magistrates may be appointed to pick up the slack, because their ranks, too, are mandated by state law.
"We've lost staff over the past two or three years, to retirement incentives and layoffs," the court attorney says, citing economic pressures and cuts from Albany. "We have lost staff as cases have increased."
Mark Bloustein, of the Office of Court Administration in Albany, says new judgeships are "not likely to happen anytime in the future," citing a cost of "approximately $1 million a part," or total spending of close to $40 million for new Family Court judgeships statewide. "There have been no new judgeships since 1991 in New York City," Bloustein says, and adds that getting any new jurists appointed will be "a major political lift, even though it's apparent that the caseload is increasing, especially in New York City."
Bloustein says staffing problems extend across all state court systems, not just Family Court. In Supreme Court, for example, judges are elected to the bench. But half of state Supreme Court justices are appointed as acting justices and have not been elected. "We have robbed civil court" benches to staff other courtrooms, including Family Court, Bloustein says.
Chief Judge Lippman continues to support the idea of new judgeships, Bloustein says, but resources are determined "by the governor and the legislature." He adds, "Last year, we had to lay off 400 people. We've been able to keep courts open, but there's no night court, and the judicial hearing officer program has basically been scrapped. At the end of the day, it's what the legislature and the governor give us." Bills offered in the Legislature and in the City Council to increase Family Court judgeships have consistently fizzled.
Lawyers and advocates say that Ronald Richter, the new head of ACS, brings a unique blend of skills and experience to the job. He has represented children as Legal Aid lawyer, served as a Family Court judge and worked at City Hall. A looming question, though, is whether he will remain at the head of the agency when a new mayor is elected. (The backstairs betting is lively: Some court watchers say he will return to the bench; others say that Richter's now in a position to advance his career into the stratosphere. There's little position in New York City more powerful than having done a big favor for the mayor. Richter consented to an interview after this issue had already gone to press.)