Before the pandemic, a Brooklyn mother faced one of the greatest hardships she would ever endure, potentially losing parental rights to her 7-year-old daughter Amora.
Then COVID-19 took hold of the New York City Family Court. And when her grandmother, Maria G., made a virtual appearance to defend her granddaughter, a whole new set of obstacles emerged.
The judge “frequently interrupted her testimony to admonish Ms. G. for her inability to hold the phone steady, her bad lighting,” and the fact that she couldn’t be heard clearly through her cell phone connection, according to a report released last month by a group of local judges, lawyers and court improvement experts. Amora’s great-grandmother did not have reliable internet or a computer or tablet in her home, and in the past, the WiFi connection had failed even at her attorney’s office — all factors beyond her control that hobbled her ability to support her granddaughter’s fight for custody.
But that Brooklyn mom at least had a hearing. Thousands more in dire circumstances in 2020 and 2021 could never even get a date set in the family court, the New York City Bar Association and The Fund for Modern Courts found.
The lack of timely court orders left one New York County 14-year-old sent home from his therapeutic boarding school, unable to re-enroll. A Bronx County dad lost eight months in his 2-year-old son’s life, missing key developmental milestones and critical bonding time.
And a Bronx mother of three children, one with significant special needs, could not get child support arrears. Her October 2020 petition was concluded roughly a year later. During the delay, she fell into debt, endured a housing eviction case, and was unable to provide for the basic needs of her children.
In its review of the local courts from March 2020 through last December, authors of the 40-page report found that delays had “caused harm to thousands of families.” and “serious constitutional issues” in the pandemic-hobbled system which primarily serves low-income families and communities of color. The courts were forced to turn to virtual hearings and curtail the number of cases that could even be presented to a judge. That created a staggering backlog in sensitive issues involving juvenile crimes, child maltreatment, foster care, termination of parental rights and adoption, custody and visitation and domestic violence.
“There is no question that of all the courts, the New York City Family Court, which has crushing caseloads and so many litigants who are not represented by counsel, has struggled the most during the pandemic,” said Lucian Chalfen, a spokesperson for the state’s Office of Court Administration, in a statement sent to The Imprint. “This report should be read in the context of that reality.”
The report’s authors acknowledged the unprecedented challenges that descended upon the courts. And this year, the court is “open and active,” Chalfen said, offering a combination of in-personal and virtual hearings. Chalfen also said the courts plan to hire 12 new bench officers, including referees and magistrates who have received training in family court matters.
“We know that when COVID-19 hit, an under-resourced court like Family Court was ill-equipped to respond quickly, consistently, fairly, and comprehensively to the needs of all litigants,” the report authors stated, noting that “under stressful and uncertain conditions,” difficult choices had to be made. Many judges and lawyers worked creatively and there were some positive outcomes, such as a reduced number of youth sent to detention facilities. Still, they added, “we can both acknowledge these facts and remain firm in our belief that the pandemic illuminated significant inequities, shortfalls and a lack of readiness in Family Court, to the detriment of many.”
The state bar association found several key shortcomings — systemic issues echoed for years in similarly critical reviews: a shortage of court staff including judges, outdated technology, poor public access and inadequate support for unrepresented litigants. They also said that “recent events have underscored the acute need to advance racial and social equity in our court system,” which is “truly a ‘People’s Court,’ primarily serving unrepresented litigants, lower-income families and communities of color.”
The fixes needed, including improvements to court technology, a user-friendly website, and greater resources to address the current case backlog “will not simply make the system more efficient but are essential for equal access to justice.”
The city’s court system is massive and by all accounts under-resourced. In 2019, there were 192,000 family court filings from New York City’s five counties. They included more than 60,000 child support and paternity cases, roughly 53,000 custody and visitation cases, 24,414 domestic violence cases, 14,000 child abuse and neglect matters and 3,100 delinquency cases. The bar association workgroup described that caseload as “far too large” to be handled by the 56 family court judges alone, even with the support of judges on temporary assignment from other courts, referees, judicial hearing officers and support magistrates.
“This report documents what was already very clear to the families who rely on Family Court: the New York court system simply does not provide the same level of service and respect to their families — who are primarily low-income and disproportionately Black and brown — that it offers more privileged families,” said Chris Gottlieb, co-director of the New York University School of Law’s Family Defense Clinic.
Many of the recent problems arose when the courts had to shut down public access and triage cases, handling only the most urgent of matters. At the start of the pandemic, pending cases were deemed “essential” and “nonessential,” or non-emergencies — including custody, visitation, guardianship, adoption and support. Those cases were stalled for almost a year, with a spotty and inconsistent rescheduling beginning in spring 2021.
The backlogs led to inordinate delays. One person, described as “a typical example,” submitted a child support application in July 2020 and had a first appearance scheduled for June 2021.
Another woman didn’t even try. Although she was being “strangled, head-butted, kicked, slapped, and pushed” by her husband in Kings County, she knew the court was not accepting child support cases. “Thus, she stayed in an abusive, unsafe situation,” report authors described, before finally filing for court relief months later.
New cases of children needing to be removed from their homes, juvenile crimes, some family violence petitions and temporary orders of protection were deemed essential by the court. But many other urgent matters were left hanging, including children waiting to be adopted and those stuck in physically or emotionally abusive custodial arrangements. Many parents separated by foster care placements were unable to schedule bonding visits. “At a time of crisis,” the authors of the January report state, “when the vulnerable populations who routinely appear in Family Court needed help the most, the courthouse doors were largely closed.”
Confusion reigned about what constituted an “emergency,” which was often left to the leaning of an individual jurist. To get their cases heard, lawyers had to get creative, crafting their clients’ circumstances as emergencies. But that left unrepresented litigants, who make up at least 80% of the courts, with no access to the family court.
“In the end, the distinction between emergencies and nonemergencies became a false dichotomy, rationalizing delays that caused harm to thousands of families,” the report found.
In one case, the adult brother of a child whose mother had died of COVID-19 appealed to the court for custody so that he could make medical and educational decisions. But at the time, the court was generally treating custody cases as non-emergencies. It took the man’s attorney multiple efforts before his case was heard. “For most litigants who are not represented by counsel,” the report stated, “this outcome in all likelihood would have been different.”
William Silverman, chairman of the Fund for Modern Courts and a co-author of the report, said in an interview with The Imprint that many others were simply left in terrible circumstances, not knowing what would happen next. “My understanding is that many family court litigants were given limited information about their cases and the status of Family Court operations generally, especially early on in the pandemic. That silence, in my view, was almost as damaging as the delay itself.”
Without any guidance, the public was left wondering when the court would fully reopen to schedule new trial dates and process petitions. The court’s website often didn’t help much either. Until this week, it’s described by the court reviewers as providing “limited,” “often unclear,” and “outdated or inaccurate” information.
The transition to remote proceedings posed other challenges, with court employees poorly equipped to work from home. As a result, caseloads grew and put more pressure on jurists who were left without adequate support staff.
Problems have plagued the New York City family courts for years.
In 2019, Chief Judge Janet DiFiore wrote to former Gov. Andrew Cuomo (D) and the state Legislature, calling the current work standards for attorneys in family court an “ongoing crisis” that exacerbated “already excessive caseloads, endangering the quality of legal representation,” and impairing court operations.
In 2020, former Obama administration Cabinet Secretary Jeh Johnson wrote in a report to DiFiore that there is a “second-class system of justice for people of color in New York State.” Johnson described the state of the family court as “dehumanizing,” and involving a “demeaning cattle-call culture.”
Then, last July, court-appointed attorneys filed a lawsuit against the city and state, citing an overload of cases and lack of pay that violated the constitutional rights of children and adults to “meaningful and effective legal representation.”
Problems outlined in the most recent report’s findings do not appear to have been resolved. The authors said they requested, but did not receive, detailed information on the backlog of filings. They also stated that as recently as last month, attorneys reported little or no improvement in overall delays.
The Office of Court Administration has taken some measures to rectify the problems. In 2021, 100 Supreme Court justices from other systems stepped in to handle roughly 600 new custody and visitation hearings. And in a Dec. 13 video address, Chief Judge DiFiore said while the number of adoptions have “not quite returned to pre-COVID levels,” the courts are on pace to finalize 33% more adoptions in 2021 than in 2020.”
But on Jan. 7, just days before the recent bar association report was issued, court administrators announced the transfer of six civil court judges, who will be replaced by only one or two judges.
“As a result,” the report authors state, “nearly 4,500 cases will have to be transferred to other sitting jurists who, as we have detailed, preside over dockets that are already overwhelming.” That, they said, is likely to cause “significant” disruption and delays for poor and low-income families of color, those who are “already the most profoundly and detrimentally impacted by the pandemic, and whose cases have already been subject to long delays.”