A prominent legal scholar’s book argues that — contrary to their therapeutic reputation — the family courts have always dished “punishments by other names.”
Jane Spinak worked in New York family courts for more than 40 years. She’s been hailed as a “human rights hero” with excellence in service by local and national bar associations. She ran prominent legal aid organizations, represented thousands of children in foster care and delinquency cases, and authored influential court practice guides.
But in her new book, “The End of Family Court,” the retired Columbia University law professor devotes 297 pages to arguing for the institution’s abolition.
Published by New York University Press and released in August, Spinak’s second book describes this overlooked judicial wing’s problems as fundamental: Starting with the first juvenile proceedings in Chicago, Illinois in 1899, due process and constitutional rights were an apparent afterthought amid the court’s insatiable growth. Spinak, 71, argues that the family courts seemed like a “great idea” with a “powerful story” for early 20th century activists seeking to aid and assimilate poor immigrant families — fueling national expansion and an “immense court industry.” That has also made them harder to abandon.
“I am appalled and ashamed by my practice, the practice of my office, and the practice of the court. At the initial removal hearings, we focused solely on the children’s safety, with the judge finding mostly that the children couldn’t live safely at home,” she writes of her years representing children in child welfare proceedings. “I rarely remember any discussion about whether there were services available so that the family could remain intact.”
Her deep dive into the court — through her own practice in delinquency or child welfare, and in searching historical archives — led her to other disheartening conclusions.
“Instead of formal judicial proceedings, harsh punishment and incarceration, judges would guide children to become law-abiding and productive by using benevolent methods of instruction, surveillance, and detention,” she writes. “That this foundational impulse — this mandate — to do good was never accomplished, not then and not now, is the reason for this book.”
Spinak recounts how major Supreme Court rulings in the 1960s and 1970s sharply questioned the family court model, and extended new protections to litigants, like the guarantee of legal representation for children in juvenile delinquency cases.
And she includes many voices in support of the current family court model, including one prominent Ohio judge last century who called the juvenile courts “the best plan for the conservation of human life and happiness ever conceived by civilized man.”
But Spinak has unearthed scores of other judges, scholars, advocates, and officials issuing critiques over more than a century. In recent decades, she notes, there have been dozens of class-action lawsuits and Department of Justice investigations against state foster care and juvenile justice systems — many uncovering horrific abuse against children, despite endless “court improvement” programs and ever-growing budget requests.
“All of the things we’re still saying today, they were saying in 1910, in 1920, in 1930.”— Jane Spinak
Over her decades-long career, Spinak served as the head of New York City’s Legal Aid Society, and she co-founded Columbia University’s legal clinics serving children, older foster youth and parents. Thus her reform agenda is detailed. For the juvenile justice system, she proposes specific reforms such as eliminating “status” offenses” — cases of youth misbehavior that aren’t criminal — and raising the minimum and maximum ages of jurisdiction. For child welfare cases, she calls for an end to mandated reporting, narrowed legal definitions of neglect and abuse and expanded legal representation for parents and children, among other remedies.
Spinak also calls for a shift in resources, from family courts to the struggling communities nationwide that send the hundreds of thousands of litigants to these ever-evolving proceedings: families from marginalized communities, who are often impoverished or homeless, and disproportionately Black and Native American.
In a recent interview with The Imprint, Spinak described how she arrived at her conclusions.
The following interview has been lightly edited.
You write that you didn’t plan to call for the family court’s abolition when you started work on this book over a decade ago. How did your views evolve?
The longer I worked on the book, the more ideas about abolition were in the air. Youth and parents with lived experiences — harmed by this system — began to organize and to demand participation and to reconcile the harms with what needed to be done. That shaped how I thought about abolition, and helped me reimagine what this system has done and why it can’t continue.
It became a more viable thing to consider. But then, delving into the history was pretty shocking. I didn’t realize when I started how many times across the century there had been serious recommendations — not by people who were particularly radical — but radical recommendations for providing the basic needs of families in the community so that they didn’t have to find themselves in court.
The last thing that was so influential for me and so many others like me was really reckoning with myself about what’s been my role. To what extent was my role useful, productive, seeking the best for my clients — whether they were children, youth, families or parents?
You describe how, even though the family courts are supposed to be “therapeutic” for families, there are punitive options at judges’ disposal: court-ordered supervision, detention and family separation. Can you describe what that looked like from your seat in the courtroom over the decades you represented young people?
What I found firsthand is that the rule of law existed only in some courtrooms and not in others.
There certainly were and are judges who respect due process, who uphold it, who want proof — they don’t want innuendo and anecdotes, they want actual evidence — and who take seriously the power that they have over children and families. They try to apply a rule of law and they self-limit how much discretion they have.
But then there are judges who don’t.
And I appeared in front of both kinds of judges. Both kinds of judges exist today. Without more circumscribed power, I think that that discretion has, for the most part, caused terrible harm.
You talk about some major institutions that have shaped the family courts: The National Council of Juvenile and Family Court Judges, or the trade group formerly known as the National Probation Association, for example. You also participated in the New York court system’s Permanent Judicial Commission for Children, as well as other reform efforts. Since your book came out, what reactions have you heard from your former colleagues?
From the people who agree with me, there’s been a lot of support. I haven’t been in spaces yet where people who support the court have pushed back. I will. I’m giving lectures and participating in conferences where I anticipate getting pushback.
One of the things I say in the book is this is not to diminish the work or the dedication that so many people working in the system have.
What’s kept this court going for so long is the ability to tell stories: ‘This judge did this’ and ‘This program did this – isn’t that great?’ There are certainly judges who abide by the law and try to really curtail their discretion themselves. But you can’t build a legal system around judges. You have to build a system around legal structure. And that’s what I’m challenging: the very idea of this court and the structure that has developed over a hundred years that has, in fact, done so much harm. It was supposed to do so much good.
You have some detailed, long-overlooked history in the book. Which historical sources surprised or stuck out the most for you?
I think what shocked me about the first half of the last century was that so many people involved in the system were issuing warnings I didn’t expect to find. As early as 1910 there was a report pointing out that this is a court for poor people, that even in times when Black children and families were mostly ignored by the court, if they were there, the court was disproportionately harsh. That’s why these families end up in court, and it can’t be separated from their poverty and the other inequities that are at play.
The answers in those reports — whether they were done by scholars, or because a court had asked someone to write them — the answers come back the same. It’s that there’s racism against these families. They are segregated. They don’t get the same services that wealthier communities get. What they need is basic: health, mental health, child care, good schools.
All of the things we’re still saying today, they were saying in 1910, in 1920, in 1930.
And they asked: Is the court going to do something about it? And if not, how do we serve these families so they don’t find themselves in court? And that really helped me to think, OK, we just can’t ask for those same things anymore.
You emphasize in the book that family court judges have vast discretion in how they handle families in their courtrooms. Do you believe family court judges have any more discretion than other bench officers in the civil or criminal courts?
Yes. New York’s Family Court Act states: “The judges of the court are thus given a wide discretion and grave responsibilities.”
Once jurisdiction for the family court has been established, we give judges “wide discretion” and power to make decisions. That’s not part of New York’s Civil Court Act. In the civil procedure laws and the criminal procedure laws, that language doesn’t exist. There is far more power and discretion than other courts have.
And that’s something that most litigants probably don’t know when they walk into family court, in your experience?
I understand your goal is to reduce the number of cases that reach family courts. But for those families whose cases do reach the court — for more serious delinquency cases for example — you’re calling for youth to have full due process rights, including the right to a jury trial. Do you have any concerns about kids losing confidentiality in those cases, if members of the public are invited in to serve on juries, for example?
My feelings about confidentiality have changed over time. Because when the press cannot easily see what’s going on, it’s very hard to hold the court to a high standard. And the reason why most people don’t really know what happens in family court is because of how much of the court is closed.
So I worry much less about whether young people will be harmed by having more open courts. There may be, just like in other civil cases, options for precluding press or the public and making an argument why a particular case or testimony should not be public. There can be options in place.
Otherwise, everybody hides. The people who prosecute hide, the people who defend hide, the judges hide, because there’s no one really paying attention to what they’re doing. Which is part of the way they have maintained this court for so long.