Family courts nationwide are grappling with a caseload crisis that delays decisions on critical issues for parents and children involving abuse and neglect, custody and visitation. Although especially problematic in major urban areas, the Empire State as a whole has been struggling with this precarious situation, leading the New York State Senate Judiciary Committee to recently recommend the addition of 21 new family court judges to the bench. This would be the first significant increase in the state’s family court judgeships in over three decades.
Most experts believe this is long overdue. According to a report prepared by the New York State Senate Committee on the Judiciary, the 143 judges currently mandated by state law handled over 2.1 million appearances statewide in 2008. The report, entitled “Kids and Families Can't Wait-The Urgent Case for New Family Court Judgeships, ” predicted a 26 percent increase in appearances, to a staggering 2.6 million. The burden of current caseloads is already felt throughout the system. In New York City, for example, an average of 3.5 minutes is spent on a family court appearance.
The recommendation is currently moving through the state's legislative process. The bill (A8957) is now currently before the state assembly, after passage by the State Senate in September. Even if the bill becomes law, the committee made clear it won't be enough. It recommended that adding at least 18 more Family Court judgeships once the state's budget crisis eases.
New York State is far from alone in its family court crisis. Most major urban and larger jurisdictions have problems with heavy family court caseloads and would benefit from more judges, said Peter Salem, Executive Director of the Association of Family and Conciliation Courts (AFCC) in Madison, Wis.
“It's always a good thing when there are more judges to help families, and more judges dedicated to the family bench who have the opportunity to obtain training and an in-depth understanding of the dynamics of the families that appear before them,” said Salem. “Not having enough judges and resources leads to delays. That's a problem. People are going through major life crises and children with often serious issues often have to be put on hold.”
Putting more judges on the bench only begins to resolve some of the deep systemic problems in the way New York deals with family issues.
“I'm picking trial dates for the end of next summer and it's not because the judges are being irresponsible or lazy, it's just their calendar availability,” said Theodor Liebmann, Clinical Professor of Law and Attorney-in-Charge of the Child Advocacy Clinic at Hofstra Law School. “There are families and agencies that will have to wait until next summer to get a finding on abuse or neglect cases. These months constitute substantial chunks of the impacted kids' lives.”
For example, if a trial date is scheduled for summer 2010, there is still no guarantee that the case will be heard on the scheduled day. “When a child is removed from their home, (he or she) is entitled to a hearing in three days,” noted Liebmann. “So to the judges who put on cases eight months ago, those newer cases take priority”—resulting, he added, in even more delay.
Family Court judges are working under exceedingly difficult and dire circumstances. “My workload has doubled,” Judge W. Dennis Duggan, who has handled family court in Albany for 16 years, wrote in an e-mail. “The work day has remained the same. No person can do twice as much work in the same amount of time and keep the same level of quality.”
Duggan, who is past president of the New York State Family Court Judges' Association, added that the workload has grown to “staggering” proportions in the years he has served on the bench. Among the consequences, he noted, are “seat of our pants” judgments. Duggan is also a board member of the National Council of Juvenile and Family Court Judges (NCJFCJ).
Elsewhere in the nation, family court judges argue that more resources as well as more judgeships are needed. “Judges are now case managers, not exclusively decision makers,” said the AFCC's Salem. “(We need) interdisciplinary programs, dispute resolution programs, legal information, education programs and drug treatment programs.”
According to Judge Karen Adam, a Superior Court Commissioner in Tucson, Arizona and chair of the NCJFCJ's Juvenile and Family Law Advisory Committee, a well-informed family court judge needs to have “more than a passing knowledge of child development, mental health issues, domestic violence and high conflict family systems.”
In Tucson, Adam notes, almost 50 percent of all court filings are in probate, juvenile and family cases alone. Cases dealing with families mirror the Tucson statistic, comprising more than half the filings nationwide.
Why is the number of family court cases increasing?
Among the intriguing reasons are the explosion of custody disputes in cases with adoptive gay parents, and the high percentage of children born to single parents who are requesting child support.
According to Adam, the latter number is now about 40 percent nationally. “In big urban areas, it is higher,” she added. “Those cases are increasing nationally with requests for child support and formalized orders for custody and family time. That's increasing court time everywhere, and we need judges to handle them.”
In addition, self-represented litigants also cause a significant backlog in court calendars.
“Family cases are at a dramatic increase,” said Andrew Schepard, Director of the Center for Children, Families and the Law and a professor at Hofstra University Law School in Hempstead, NY. “More and more of these people are pro se. Fewer people can afford lawyers, while the upper class has a trend toward distrust and want to do work themselves.”
Judge Adam agrees. “The interesting thing with family law is that half of the clients are self-represented,” she said. “So you need to have more judicial management of these cases.”.
Child advocates and judges dealing with family and juvenile issues nationwide recommend a “one judge, one family” system with support resources as a way to provide case continuity and best deal with the complexities of such matters.
Experts agree that movement toward a unified court system in all jurisdictions is a trend that would be the ideal model practice in the best interest of children and families.
A Vermont Model
One model is already on the books. Since 1990, Vermont has had a unified family court system which is “working well,” according to Judge Amy Davenport, Chief Administrative Judge for the Vermont Trial Courts. “The same children may be involved in different types of cases,” she added,
“In family court, a judge has the opportunity to review all of the cases involving a child and his or her family. For example, parents may be divorcing while at the same time a protective order is issued because there is domestic violence. Then you have the 12 year-old child running away from home and now has there is a PINS (persons in need of supervision) case. Having the same judge see all of these cases could be critical for that child.”
In New York, judges would like to see similar models put on the state's agenda. Schepard, for instance, suggests establishing a family division within the New York State Supreme Court system that hears all family issues. “The only way to deal with inefficiencies is to have one judge.”
At a time when budget cutbacks rule in state governments, this may be a hard sell. But those same budget cutbacks have also helped create the instabilities and family problems that end up eventually in family courts.
Schepard asks us therefore to spare a thought for the beleaguered judges who have to handle the sad and often tragic results.
“They are doing heroic work in an impossible environment,” he says.
Andrea S. Glenn is an attorney, a former public defender in Bronx County, and a freelance reporter with a Master's Degree from Columbia University's Graduate School of Journalism.