5+ Years, 2 Courts, 3 Judges, Many Attorneys, Wasted Time & Resources
Ms. S., originally unrepresented, entered the court system through family court in New York City. A survivor of domestic violence, she originally went to family court for an order of protection. While in family court, she filed for custody of her two children. After her spouse was served, she went back to family court where she received assigned counsel for her cases. Her spouse also retained an attorney and her children were assigned lawyers. After several appearances, Ms. S filed for child support. She now had three cases going forward in family court before two separate judges on different days. When her spouse filed for divorce, they entered a new venue — State supreme court.
Hearing about the divorce, the Family Court judge dismissed the custody case, adjourned the order of protection and the support magistrate also adjourned the child support matter. Ms. S went to supreme court without an attorney for the first appearance because her family court attorney did not want to represent her in Supreme Court. The Supreme Court, aware of the pending family court matters, consolidated the order of protection but not the support case and Ms. S was assigned a new attorney for these matters. But she did not have a lawyer to help her to navigate the financial aspects of her case. Ms. S’s children’s attorney would also not appear in supreme court, so they were assigned another attorney. The supreme court refused to consolidate the child support, so even though that was integral in the divorce, it remained in family court. The supreme court originally did not want to consolidate the order of protection, even though the issues would have to be litigated because of the custody in supreme court, but they relented. Otherwise, she would have to endure the trauma of telling her story of abuse to two separate judges at different times.
Does this sound confusing and inefficient? It was both.
Ms. S. was in two courts, before three judges and has had two attorneys (as have her children). She will continue to litigate in both family and supreme court – wasting resources, losing days from work, and trying to find child-care while in court. Eventually, she was able to retain LAS and we stepped in on all of Ms. S’s pending matters. Almost six years after Ms. S first entered a court, after three judges, two attorneys for her, two attorneys for her children, four separate proceedings and re-litigating the same issue over and over, Ms. S finally received a divorce, custody, an order of protection and support.
Custody, Visitation, Child Support and a Stalled Divorce Case
Mary is the custodial mother. She and the non-custodial father are married, but separated. Parties came to Family Court to establish orders of custody, visitation and child support. After this, they initiated the divorce proceeding, which is currently stalled. Mother has filed to increase child support and her case was dismissed because of the pending divorce action in Supreme Court. Mother’s options are limited as a pro se litigant. She can either pay her divorce attorney to file additional paperwork to deal with this issue in Supreme Court, or the mother would simply have to wait for the divorce to finalize before she can once again bring it in front of Family Court.
3 Cases Pending in 3 Courts
B.B. will soon have three cases pending in three different courts. Her custody and ACS case are before one judge in Family Court, while her divorce case is before another in Supreme. Now, she has just been served with a 10-day notice to quit by her in-laws, who are seeking to evict her from her home, necessitating another case in Housing Court. All the while, B.B. is caring for two young children while trying to enforce an order of protection against her husband, cooperate with ACS supervision, and find a job to support herself and her children.
At NYLAG’s Domestic Violence Law Unit, we seek to limit multiple jurisdictional issues when possible. If it is feasible, we always advocate for cases to be moved to the IDV part so that one jurist can preside over the entire case and clients do not have to run to two or sometimes three different courts. On average, cases in integrated parts, or presided over by one judge, are completed months faster than those where the issues are split up among different courts. Integrated courts also provide for more holistic representation by attorneys and legal providers on both sides of the table.
DV Survivor Still in Court After 5 Years – Child Support Issues Unresolved
J.L. is a survivor of DV, and a single mother of 3, one of whom has special needs. For over five years she has been litigating in New York County Family Court. She had an order of protection and a custody/visitation case pending in New York County Supreme Court’s Integrated Domestic Violence (IDV) Part. That case was resolved in 2015 with an order of sole custody and a final order of protection in her favor. After the father of her children unilaterally withdrew all financial support for the children when she sought court intervention to protect her and her children, she needed to file for child support. However, because the parties were no longer married, she had to file for child support in New York Family Court while her custody case in Supreme IDV. We are now only mid-trial on the support proceeding, with our next court dates in 2020.
Why did this happen?
First, multiple court dates were required for the litigants who could not take off multiple days each month from work as they are paid daily wages. The Supreme Court case moved more quickly, whereas the Family Court Case did not. In 2017, mid-way through the first trial, the Support Magistrate retired, and there was a mistrial. The second magistrate assigned did not move the case towards trial as she was being reassigned and did not want another mistrial. The case now is on its third magistrate with a trial scheduled in 2020. This has been devastating for our client. Besides the obvious burden of taking days off work every few months for years, lessening her take home pay and perhaps impacting her long-term employment and opportunities for advancement at her job given her consistent, years long, pattern of taking a day off work every other month, our client has been left with an ineffective temporary child support order and no recourse. Notwithstanding the temporary order of support, the non-custodial parent has only been paying her, at most, 25% of the order for over five years.
Despite the failure to adhere to the court order, our client is unable to file a violation petition to seek enforcement of the order. Violations, and consequences for non-payment, only exist after the issuance of a final order of support. She and her children have suffered tremendously during this time. She lost one job because she cannot afford child-care and had to take off work every time a child was sick or had a school vacation. She has over $10,000 in credit card debt, just to pay for basic expenses like food and clothing. Her children no longer participate in the extracurricular activities that they used to do because she can’t afford the uniforms, bus fees and other expenses. If this family had one jurist presiding over the custody, visitation, and support matter, the case would have been completed in 2015. Instead, she faces ongoing protracted litigation that in no way responds to the real issues which individuals in New York face who are dependent on getting a resolution from court.
Complex Custody, Guardianship & Abuse Proceedings Required Multiple Courts
Ms. A, a 91-year-old woman from the Bronx, was experiencing financial and psychological abuse by her granddaughter, Tia. Ms. A suffers from advanced dementia and therefore requires twenty-four hour care. Her social worker identified this pattern of abuse and immediately referred the case to the Vulnerable Elder Protection Team at New York Presbyterian Hospital. Ms. A’s court appointed guardian removed her from her home and had her hospitalized due to immediate safety concerns.
Soon after her hospitalization, Ms. A was admitted the Weinberg Center, and Ms. A’s other granddaughter, Ellen, stepped up to serve as Ms. A’s guardian. During the guardianship proceeding, it was uncovered that Ms. A had legal custody of her great-grandchildren. Due to her declining capacity and inability to care for herself, it was necessary for somebody else to take custody of the children.
To Ellen’s surprise and devastation, the judge in the ongoing guardianship proceeding lacked authority to make that custody decision. Instead, a long, complicated process was initiated in the family court. Ellen, Ms A’s guardian, filed for custody of the great-grandchildren. Soon after, Tia, Ms. A’s abuser, also filed for custody of the great-grandchildren. The custody dispute now involved: Ms. A through her guardian, Ellen; Ellen on her own behalf; and Tia, Ms. A’s abuser.
In family court, Ellen, a non-attorney without expertise in either Supreme or Family Court, was left to relay the complexities of the family dynamic, custody matter, abuse, and guardianship in this new forum. In Ms. A’s case, a lawyer and social worker from the Weinberg Center were able to help guide the family through this complex process, serving as a source of information both to Ms. A’s family and the court. Unfortunately, many older adults and families must face this system on their own.
Housing & Guardianship Cases Yield Positive Outcome in Integrated Court
Ms. W, an 87-year-old female with a diagnosis of dementia, was admitted to the Weinberg Center from her apartment in Manhattan after being physically, financially, and psychologically abused by various young adults. In addition to the abuse, she was also facing eviction due to the behaviors of the young adults residing in her apartment. They were allegedly using illegal substances, destroying various parts of the building, and threatening the building superintendent.
This was not the first time Ms. W was facing eviction because of these young adults. In a previous eviction proceeding, the landlord told Ms. W that he would drop the case, but only if Ms. W signed a stipulation that she would control the behavior of the young adults residing with her. In order to avoid the loss of her home, Ms. W signed, but, ultimately, she could not comply. Ms. W’s housing issues and cognitive decline were deeply intertwined, and it became clear that Ms. W was in need of a guardian.
Typically, the landlord’s case against Ms. W would proceed in housing court, while Ms. W’s guardianship case proceeded in the guardianship court. Separate proceedings mean that: the cases are resolved separately; neither judge may understand the full scope or context of the case; Ms. W could be evicted in the middle of her guardianship proceeding.
Fortunately, that is not what happened to Ms. W.
Instead, Ms. W’s case was heard in the integrated guardianship part 7. This integrated part has authority to hear housing and guardianship cases simultaneously, allowing one judge to preside over these two deeply intertwined legal matters. Consolidating authority equips the judge to better understand the full facts of the case.
In Ms. W’s case, she was appointed a guardian. Her judge understood the circumstances surrounding the stipulations submitted by the landlord. The eviction was stayed while the guardianship matter was resolved, and the landlord and guardian were empowered to negotiate with each other.
This integrated part is one small example of the transformative power that a consolidated court system could have.
Older adults—and particularly older adults who have experienced abuse and may be coping with trauma or have reduced capacity—face many barriers to accessing justice through our courts. One of these barriers is the sheer complexity of the New York court system. Our court system often requires victims of elder abuse to seek relief through multiple systems, resulting in long delays, arduous travel for repeat appearances, and unresolved matters that directly impact the well-being and safety of older adults.
Enduring 6 Years of Delays
Ellen suffered from a debilitating stroke paralyzing her from the waist down and severely limiting her verbal skills, all while she fought to keep custody of her children and obtain protection from her horrific abusive ex-partner. Appearing for court required a tremendous amount of preparation: figuring out how and when to meet with her attorney, coordinating with Access-A-Ride to get to court on time, coordinating with the ADA court liaison to ensure reasonable accommodations were made for her and ensuring that a “Real-Time” interpreter would be available. Additionally, given the client’s disability, a family member was needed to accompany her to court each time.
Consider all the effort that goes into just getting the client to appear. Imagine the devastation when she arrives to find that the interpreter is not available. Throughout the 6 years that this case pended, the court was unable to coordinate translation for 90% of her court appearances. Ellen was unable to meaningfully participate in her case. She lost her ability to communicate her story because the court took away her voice. That’s the impact of these delays – the system that was supposed to help her essentially disempowered her.
This lack of access to interpretation was arguably a violation of the Americans with Disabilities Act, however the client had no more time or strength to entertain yet another lawsuit. The many court appearances and adjournments referenced above also delayed the client from fully moving past the abuse she endured, as she was forced to encounter her abuser for 6 years.
Lack of ASL Interpreters Causes Harmful Delays
Lena is Deaf and requires an American Sign Language (ASL) interpreter to communicate. Since the ASL interpreter is not available daily in Lena’s particular borough, the client is only able to appear on certain days of the week that correspond with the ASL interpreter’s availability and the court calendar. Even when interpreters are ordered by the court to appear, very frequently they do not appear or appear with great delays, causing litigants’ cases to be administratively adjourned.
Such needless delays have significant safety risks to our clients. Delays in court can be lost opportunities to make emergency applications regarding the safety of the client or their children. It may be several months until they have another opportunity to be heard. These delays are also a financial burden to clients paying for private counsel, incurring expensive attorney’s fees that produced no result.
Simplifying the court system will enable these limited resources to be more readily available-decreasing the time interpreters spend traveling between courthouses and better coordinating their appearances.
Family Court – Too Many Cases, Insufficient Resources
Mary, a hearing-impaired lesbian, was seeking visits with her twelve-year-old daughter whom she had raised and lived with since birth. In fact, Mary was the stay-at-home parent and she and her daughter Liza were extremely close. After Mary and her wife separated, Liza went back and forth between her parents’ homes for about two years. But when her wife’s older child from a different relationship went off to college, she suddenly and unilaterally started to restrict Mary’s access to Liza.
LeGal engaged the pro bono assistance from a law firm to represent Mary in Family Court. During the eighteen-month proceeding, there were numerous and lengthy adjournments due to lack of sign language interpreters and also the court’s busy calendar. During the proceedings, Mary has not had an overnight visit with Liza who has been tormented thorough her pre-adolescence not knowing where she will end up living, failing in school and having no friends. This situation is a grave injustice for both Mary and Liza.
Supreme Court or Family Court – How to Choose?
Debby was with her partner for ten years and they had a child together, Sarah. Unfortunately, Debby was not the biological parent, but with her partner had raised Sarah since she was born. When Debby and her partner split up their daughter was six years old. For a while they were able to co-parent but when Debby started a new relationship her former partner began severely curtailing her access to their daughter – despite a written agreement.
Debby reached out to LeGal during a walk-in clinic in the Bronx. We identified experienced co-counsel pro bono. Debby had to file two cases – one to determine her ‘parentage’ and another for custody. In this instance like many family cases, Debby had to choose where to bring her cases, either Family or Supreme Court. Counsel explained to Debby the pros and cons of each.
Ultimately, Debby chose to file in Supreme Court, primarily because her lawyer advised her it would take significantly longer to have a trial in Family Court and she would have to take days off work. Debby prevailed at trial, winning her right to parent and joint custody. When she was finally adjudged a parent in Supreme Court she tried to have Sarah’s birth certificate amended to include her as a parent. But despite an order from the Supreme Court, the Department of Health (DOH) refused to add her to the birth certificate. Debby was now forced to file another proceeding against the DOH called an Article 78. Those cases cannot be heard in Family Court but because she initially filed in Supreme she was lucky enough to go back before the same judge. Although she ultimately prevailed, Sarah missed months of contact with her mother.