In recent years, New York has taken tentative steps to investigate and reform its failing family court system. And while any effort to reshape a broken system is welcome, real reform is long overdue.
Though a myriad of studies have shown that the incidence of child abuse and neglect is about equal across racial and economic lines, poor families of color are disproportionately represented in the child welfare system. The simple truth is that when you are poor, caseworkers, prosecutors and judges are far less likely to defer to what, in a wealthy white neighborhood, would simply be described as a reasonable parenting decision. When you peel back the rhetoric, and peer past the politics, in the South Bronx, as in other poor communities, the bulk of family court cases are really about poverty.
In poor communities all over this country, children are removed from the custody of their parents swiftly in response to allegations of unpaid utility bills, a lack of food in the cupboards, poor school attendance, missed medical appointments, or even verbal arguments or untidy houses. Once started, cases can last for years, investigations are lacking and the bar for corroboration is low. Parents lucky enough to have their children returned to them must often comply with "one size fits all" court mandated services that often fail to address the unique needs of an individual family.
For example, a father charged with leaving a child home alone to run to the corner bodega for milk may be ordered to take a drug test or undergo a mental health examination -- even though there is no indication that he has a drug problem or mental illness -- before his children can come home. Or a struggling parent with too little food in the house is ordered to attend an anger management program (instead of receiving immediate and critical help in navigating the bureaucracy of the food stamps program, or finding a nearby food bank) before having her kids returned.
And those who aren't lucky enough to get their kids back at all? They lose their children to the government -- now the custodian of nearly half a million American children. Spend even a single day in family court and you'll understand why the New York Fund for Modern Courts describes a "crisis in family court."
Powered by a fear of the political fallout from the tragic stories of child abuse, the system
too often favors immediate child removal. In a vain attempt to prevent the rare, but politically costly, stories of "the child who fell through the cracks," the system regularly infringes, with devastating consequences, on the autonomy of hundreds of thousands of families. Worse still is that these families are torn apart despite the fact that often the children and parents want to stay together and could do so without risk to the children. This often happens because the wishes of parents and children don't always get represented faithfully in the family court system.
Last week, Governor Paterson took a small, but important, step toward ameliorating this problem by revising the description of the attorneys who represent children in family court. Simply by changing the term "law guardian" to "counsel for children" in the statutory language, the Governor sent a clear message that attorneys for children, like all other lawyers, must be guided by the wishes of their clients. Sadly, this rather obvious notion has not always been followed in a legal culture that too often replaces what children want with its own judgments about what's in the children's "best interests."
The move to clarify roles in family court is the result of several recent commissions charged with investigating and reporting on family court practices, and it is an important move towards taking seriously the rights and voices of families in the child welfare system. Thanks to Governor Paterson, attorneys for children are clearly required to advocate for children to go home if that is what the children want. Removing one of the many opportunities in the process for personal judgments to separate kids from their parents, is an important and welcome step.
Now, if we could only just recognize all the ways in which personal judgments about poverty, race and parenthood determine who gets dragged into family court in the first place, we might be closer to real reform.