There is something majestic about law, whether one agrees or disagrees with its statutory, common, or case law foundation. The idea that creating a family consonant with our and society’s values is at once challenging and enervating. Regardless of one’s beliefs, the law is inspiring.
Inspiration is quickly diminished, however, once one finds herself in a courtroom in the overheated, windowless, musty smelling courtrooms in New York Family Court. What awaits a parent, grandparent, child, or dear friend is a display of utter contempt for the system, the parties, the community and the law. There is, quite frankly, nothing inspiring or majestic about family court. What predominates is hopelessness and rage.
The question is: Why? Why do parents leave family court cloaked in anguish?
In myriad cases, the court divests the mother of her fundamental constitutional right to the “society” of her children. Translated, this means, mom is barred from living with her children, and she loses all decision-making power to decide where the children attend school, practice their religion, engage in extracurricular activities, or receive medical care. Full legal and physical custody vests in the father. Mom, if lucky, may receive visitation, often supervised and for a minimal amount of time.
In some cases, courts grant a mere 60 minutes per week and withhold telephonic or electronic contact. Under this draconian schematic, children lose connection not only with their mother but also with siblings and the maternal side of the family. Thus, the court dislocates children from half of the familial circle.
Is this in the child’s best interest? Damned if the court knows, since orders issue without a best-interest inquiry, required by case and statutory law.
In such matters, the custodial parent is often the parent who is abusive to mom and/or the children. And in fashioning such orders the court does so in the absence of a hearing, which in a plethora of cases is required by New York Statte case law. In crafting its orders, the court, a.k.a. the judge, relies solely upon the unsubstantiated hearsay allegations proffered by opposing counsel. Indeed, in one such case, the NYS Family Court proclaimed:
“ Look, I haven’t done a trial. I don’t know what the true facts are, but I can tell you in this case where I find one parent is making false reports … there’s no unsupervised visits. There may even be the end of visits.” [ Emphasis added].
Putting aside for the moment, the poorly worded and grammatically challenged admonition by the court, this two-sentence statement is rife with problems, not the least of which is exorcising all conceptions of due process, a legal theory we Americans claim to hold dear. In the case cited above, there was no inquiry by the court nor proceeding to examine whether counsel’s claims were in fact true, accurate or veritable.
The court provided no opportunity to hear from the parents, the child protective worker who conducted the CPS investigation, or witnesses who experienced as well as observed opposing counsel’s client beat his children with a belt. There was no cross-examination of professional or lay witnesses to either confirm or deny the allegations offered by the father’s attorney. The court neither considered nor scrutinized how the welts appeared on the child’s back — injuries which could not materialize on their own. The court merely accepted as gospel, opposing counsel’s unproven claims that it was mom who contacted CPS, thus triggering an investigation.
While the investigation was termed “unfounded,” this shorthand did not belie the injuries to the little one’s body, nor establish dad was not the culprit. Unfounded in this case referred to the conclusion, drawn by CPS, that there was insufficient credible evidence that dad created the harm. Indeed, the report did not establish dad didn’t cause the harm, merely the preliminary evidence collected by CPS did not establish who caused it. And since pictures of the welts memorialized the injuries to the child, CPS could not conclude the injuries were fabricated by the mother.
Perhaps if the court held a hearing prior to issuing its order, it might have learned the circumstances particular to injuries sustained by the child. Absent a hearing, however, critical issues persisted, specifically the credibility of evidence gathered by CPS.
Indeed, once in the witness box, the CPS investigator would have been cross-examined by mom’s attorneys. First, was the child questioned, under what circumstances, who was present? Was dad in the room during questioning? Were other members of the household present, such as dad’s girlfriend — the woman passing herself off as the child’s mother? What questions were posed by CPS, to whom were they addressed and what responses were offered? As any first-year law student recognizes, these questions are key to proving or disproving who inflicted the harm.
Absent a “full and fair fact-finding,” the court accepted counsel’s allegation CPS produced an unfounded report, supported by unimpeachable evidence. Yet, no one, not the court, attorneys or parents knew what the report specifically articulated because CPS was not examined by either the judge or lawyers.
To add insult to injury, the court imputed the “unfounded” report to the mother and accepted the conclusion mom engaged in parental alienation syndrome. A national study, however, conducted by professor Joan Meier, law professor at Catholic University Law School, found 30 to 50 percent of mothers in custody cases are charged with parental alienation syndrome (PAS) due to unfounded CPS reports. As a result, custody is awarded to the father.
This knee-jerk reaction by courts is replete with problems. The National Council of Juvenile and Family Court Judges has characterized PAS as “junk science.” In New York State, appellate and a few trial courts bar its introduction into evidence because the “syndrome” isn’t scientifically grounded. Simply put, PAS is nothing more than opinion — and not a credible opinion. Yet a plethora of family court judges not only permit PAS, but they also reference it without any evidence.
Equally troubling is the violence done to the English language by courts analogizing ‘unfounded’ with ‘false.’ These words are not synonymous, nor treated as synonyms. Yet those who sit on the bench and create this connection or analogy demonstrate shocking ignorance to what these words mean.
Words do have meaning. We have volumes which attribute meaning to words, something jurists seem to discount, ignore or worse … do not understand. Nevertheless, presuming, assuming or concluding mom triggered the investigation cannot be established! According to NYS law, a caller to the Child Abuse Hotline is anonymous. And unless that term has undergone radical distortion, there is no way anyone can identify and then determine who triggered a CPS investigation.
Notwithstanding the battered women’s movement’s consistent pressure to amend Social Service Law 422, anonymity remains the rule. I wonder if it ever crossed the mind of a judge that the caller to CPS triggering a report could be the abusive parent (and in most cases, the father). Without being overly, paranoid, it’s a damn good strategy.
We have a court system which relies on junk science, uses it to penalize absent any evidence or more importantly the ability to secure evidence as to who triggered a report. In one case where I represented a mother, CPS was contacted over 20 times with claims mom abused the kids. Judge Judy literally threw up her hands as if to remind that there was no way to ascertain who triggered the investigations.
Unlike the judge noted above, in this case Judge Judy held a hearing. As the forensic psychiatric evaluator testified, data supports how abusers manipulate the system whilst currying favor with the court. This new tactic weaponizes the courts in abuse of the mother.
This is the reality for many women who find themselves in family court. The problem is disturbingly clear. Courts do as they do because there is neither oversight nor transparency. Accountability? None. Systemic abuse perpetuated by state actors remains hidden.
Yet I hold no quarter to believe change is on the horizon. Notably, the issues cited in this opinion piece are not new. The problems articulated existed when I first walked into court over 30 years ago. Courts were removing children from loving mothers and into the arms of errant abusive fathers.
I am not confident the system will heal itself. Families will continue to be destroyed, communities harmed, and the willful indifference of the courts to law and conceptions of due process shall continue. There are, if you will, mini-Alitos warming court benches here in New York and across the country.
We must be committed to changing the system totally. My colleagues are correct. It may be time to do away with a court system which is harmful, destructive, and uncompromisingly indifferent to the rule of law. Perhaps, starting over is what our families, communities and the law deserve.
There is nothing majestic about law in New York’s Family Courts. Perhaps there may come a time when law is once again a shield against injustice.
A girl can dream.
Kris McDaniel-Miccio is guest columnist and media commentator on political and legal issues. A former New York City and Ulster County prosecutor and founding director of the Center for Battered Women’s Legal Services. Kris is also a Fulbright scholar and professor emerita in law. She welcomes your feedback at email@example.com