A Review: “Reforming Family Court: Getting It Right between Rhetoric and Reality”
Author: Prof. Jane M. Spinak, Edward Ross Aranow Clinical Professor of Law, Columbia Law School
Journal of Law & Policy: Reforming Family Court: Getting It Right between Rhetoric and Reality

“Reforming Family Court” is a in depth article that insists reform should move from the idea that Family Court is needed to “help” a family, or use it’s power to fix a family, but instead, should begin with “What value does a Family Court Add When it Intervenes in a Family’s Life?”

This article began with inner conflict–loyalty vs. the harsh reality. Jane M Spinak, a respected law professor, was asked to write a commentary on family court reforms initiated by Chief Judge Judith S. Kaye (New York) at her retirement. Spinak was torn because as hard as the Chief Justice worked during her career to reform family court, much work still needs to be done: “On the one hand, I wanted to give Judge Kaye credit for her deep commitment to reforming family court; on the other hand, I had to ask myself who was to blame—including perhaps Judge Kaye herself —for failing to achieve significant reform despite enormous effort.”

“Reforming Family Court” is a fearless launch into the history of Family Court, its failures and what can be done to initiate meaningful reforms while preserving the rights of families.

1) The History of Family Court – Why Failures Persist

 

Family Court was created at the turn of the 20th century by social reformers to address a variety of social and family issues. The creators imagined compassionate, experienced public servants and judges would work together to help solve the problems of children and families. The role of the judge in this era was of a kindly, paternal figure guiding wayward or troubled families (it was assumed everyone in family court had fallen short of societal norms in some way) into a better life.

By mid century, a new generation of reformers was exposing corruption and abuses of power in family court that was damaging children and families–to such an extent that family court was doing more harm than good.
Many of the problems Spinak mentioned as occurring during this time seem to be unresolved, they are the complaints of many in Family Court today: “..inappropriate state intervention into family decision making, inadequate services to support families, untrained and under resourced social service
systems, children placed in dangerous and inappropriate institutions,and court proceedings that failed to provide even a semblance of due process…”

State and Federal Courts then began to define the rights of children and families to create procedural rules for the court, to establish the rights of litigants and set stricter evidenciary standards in child welfare cases. Family Court was still looked on as a place to solve problems but now viewed not as a kindly intervener but more as an authority reaching into the private lives of families, and the future of children.

Spinak disagrees that the Court is a place for families to get “help” (as it was created to be) and believes that the Court is, in reality, a last resort for struggling families to resolve complex issues. Rarely are these issues solved in a manner that actually empowers families,But whether families come for general help or a legally binding decision, they currently get neither. Throughout the country, family courts have become clogged with cases that take months or years to reach resolution..”
I personally believe… If Ever! Sometimes the damage Family Court creates lasts a life time or permanently severs families.

The power of “Reforming Family Court” begins with Spinak asking the following questions that turn Family Court upside down by asking us to consider:

Why are these cases in court at all?
Why do child protective agencies and juvenile prosecutors flood courts with cases?
Why do we use courts as ongoing arbiters in family disputes?

Spinak believes that current reforms in Family Court are creating more problems, and beliefs behind these reforms are equally as damaging. Modern reforms driven by the belief that Family Court should have the power to solve family conflicts, and is the authority on what that help should be creates challenges that sabotages families. Specifically, reforms give Courts and judges too much power over individuals and families, and often put the judge in the role as a leader or expert instead of encouraging families to seek help and support from experienced professionals who may be able to resolve the issues with less intrusion on their lives, and their parental rights.

Spinak states the Court must do more than assume the role of an authority or helper to families but must also protect the due process rights of parents, “The court‘s role is to protect both parents right to raise their children as they choose and children‘s right to grow up with their families. The United States Constitution prohibits states from intervening in family life without establishing that a family is unable to protect a child from harm,neglect, abuse, or trouble. If the family affirmatively seeks the assistance of the court, these requests must not automatically trigger additional court intervention without clear proof of harm…unless a legally defined harm can be established, the courtcannot function as a problem solver no matter what positive consequence results“.

Spinak is very clear that families should be able to seek help elsewhere, not from the courts alone, and that Family Court should use its “coercive power” over families only as a last resort. Other sources of help a family may utilize could include: education, faith based support, social welfare, community resources, etc

2) The Myth of Family Court – Why Meaningful Reform is Obscured

Spinak believes that stories, rhetoric and myths surrounding Family Court, and its role in society contribute to inability to pass needed reform or make real change, (Spinak) “.. we need to be very careful about heralding courts as problem solvers without sufficient proof of their problem solving abilities.”

I would even assert that these stories are passed on by those working within family court, or holding positions of power who need to perpetuate these myths to keep their own power or privilege. I have also seen a Court covering up its mistakes or corruption by asserting its power, using intimidation or silencing the litigants.

Spinak says we need systematic analysis–not stories–to determine the success of court reforms, and address the real issues involved, “We must be willing to subjectour ideas and models to rigorous analysis rather than relying on anecdotal stories. We must commit to collecting information and analyzing it.”

Emotional attachment to the myth of family court is another reason why reforms fail. The idea of a problem solving court that uses its power to help people generates strong emotion that often prevents people from seeing the reality of the courts challenges and failures.

I would like to go one step further and state those who point out problems in the Court or blow the whistle with their own stories of being victimized by the court are often not believed, not taken seriously because those holding onto these strong emotions cannot face reality. So they simply blame the victims, who often experience retaliation or are forced into silence either by social pressure or judicial order (gag orders, jail time, fines, threats of punishment etc).

Further, reforms in family court are also limited by the way they are framed. A common notion is that family court can be fixed with more money or more judges, more lawyers, “more everything”. This framework keeps people from seeing alternative solutions, and insists the Court can fix its own problems. If the resources disappear, reform does not happen.

I would also like to add that limited framework happens when those initiating reform work withing family court or legal circles, and when there is no accountability or measure for punishing corrupt officials. Meaningful reform can only happen when the Court is held accountable to the community, its litigants and society as a whole. There has to be assurance, and trust that reform is really taking place. This can only happen when an outside authority working together with those invested in the Court (the community/people) participate in reform, and are able to give input without fear of retaliation.

3) Accountability

According to Spinak, accountability is when we can accept responsibility for the success or failure for the reforms. Spinak says current accountability in the court fails because it lacks “systematic knowledge” which gives an explanation that more than one person can witness, and that explanation appeals to logic, and can apply correctly “from one situation to another”.

Or, in a nutshell (Spinak), “In the realm of family court reform, common sense, lack of skepticism, and traditional framing have limited the ability to objectively examine the effectiveness of
our reform efforts. For fifteen years we have been engaged in a nationwide effort to reform
family court without bringing to that reform a critical eye.”


Spinak then analyzes the various efforts at reform, which was a bit lengthy so I did not cover it here but you can read more at: http://web.law.columbia.edu/sites/default/files/microsites/30-years-family-advocacy/files/Spinak-Rhetoric-Reality.pdf

An Idea for Reform – Limiting the Court’s Power, Strengthening Families

Spinak argues that limiting the Court’s power is better for the family.

A Court that guarantees due process of litigants would better balance the needs of the family and the role of the Court. Parents have a fundamental right to make decisions regarding the care, custody and control of their children. Giving more power to the Court to make those decisions, ultimately, takes away from the power–and legal rights–of the parent. Reforms that enforce the notion the the Court or the Judge is a helper or a needed authority, and expand its power often create more problems because the family is stripped of these inherent rights (and such help or support could be better met through alternate resources, relying on the Court only in this manner as a last result).

Two models for reform are analyzed. In one, Spinak proposes that providing more lawyers in family court would help–not just any lawyer but a lawyer willing to work as a team in shared offices with social workers and parent advocates. In Spinak’s theory, the team would assist the family outside of court, and if problem could not be solved, they would go to court together–with the goal of resolution (not as adversaries). The parent would have confidentiality working with this team through all phases of the legal process–filing to appeal. In this way the family is not relying on the court to solve problems but is using an experienced team of professionals to address the issues by using skills in “law, social services, and life”. This model would be tested by comparing outcomes using this model to those who did not; if the outcomes were better, the program could be expanded.


CONCLUSION – Failed Courts Fail Families

In conclusion, Family Court is in desperate need of reform, its failures greatly impact the families and children, often with devastating results.

Spinak has outlined the history of Family Court and its attempts at reform, and effectively outlined the reasons why reform has failed. She has also given ideas for testing the reforms, and possible measures that may help. Her experience in the legal profession, and as a law professor, offer valuable insight..and demand action. Attempts at Family Court reform should not stop with the hope that things will work but should be met with rigorous testing and analysis to determine that these reforms actually work. The Court should not be relied on a sole source of authority and help, but rather other resources and professionals should be employed so that the families involved so that the families involved maintain their rights to the control and care of their children. Efforts need to continue until families are fairly represented in Court, and given the protection they deserve.

Efforts to reform Family Court have been hindered by beliefs about the role of the Court that has proven to be damaging to families, and by emotional ties that deflect the idea of change. Attempts for reform that expand the Courts power, infringe on the rights on parents, or simply throw money at the Court for more resources, staff, etc have also been tried–but never formally examined or tested to determine their success. Society has largely been placated by the idea of “reform” without actually accomplishing anything. The voice of the victims of Family Court failures are drown out in the cry for reform, or used to pass ineffective measures–without any real steps taken to making improvements, or holding the Court accountable when its actions hurt those it should be protecting. There is no justice in failed reforms, failed policies, and failed courts.

Thank you Jane M Spinak for your sharing your experiences and insight. I also hope we can work towards meaningful reform in Family Court, and a system that better protects families while safeguarding the rights of parents and children. — EJ

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