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Why Family Court Can’t Be Saved

Jane M. Spinak

January 25, 2024

True justice for underprivileged families requires restructuring the system

True justice for underprivileged families requires restructuring the system

At the turn of the 20th century, American social reformers created the first juvenile court, leading ultimately to today’s family courts. They imagined a therapeutic court where informality, specially trained public servants, and a kindly, all-knowing judge would assist children and families. The judge’s role was intended to solve the problems that brought these children and their families to the court, in what we now call juvenile delinquency, status offenses, child welfare/family regulation or custodial matters. 

As I detail in my book, “The End of Family Court: How Abolishing the Court Brings Justice to Children and Families,” this vision of a problem-solving court proved only to be a dream, and often a nightmare. 

When I began writing my book, I had no intention of calling for the abolition of family court. I believed that if the court could safeguard constitutional constraints on state intervention into families’ lives and champion due process protections in its proceedings, then it could fulfill a modern-day obligation to provide children and families with a fair judicial process when state intervention in family life becomes necessary. But what I learned by studying the 125-year institutional history of this so-called “socialized” court was that neither enhanced resources nor the addition of some due process protections for children and parents could reform a court that continued to believe in its own ability to solve family problems, whether by therapeutic or punitive means. As a result, the court more often causes harm in its attempts to do good

This harm has been repeatedly unheeded, especially by juvenile and family court judges. Most recently, in this publication, former family court judge Liberty Aldrich asks, in response to my book, “Is Family Court Worth Saving?” — a question she then answers with a resounding yes. In her desire to preserve the court, she draws on the long history of juvenile and family court judges defending what I call the Great Idea of a benevolent court ostensibly established to help a child desist from troublesome behavior and/or ensure her parent would provide proper care. 

My proposed alternative is to strengthen the ability of society to support the parents and children most likely to find themselves in a family court and vastly reduce the need for any court intervention at all. This strengthening requires us to acknowledge who family courts were created for — and overwhelmingly impact — multi-generationally impoverished families, particularly Black families and other families of color. These families have always been intentionally marginalized and restricted in their access to societal benefits, and their traumas have often been imprinted across generations. 

My recommended solutions fall into two broad categories. First, we need to take immediate steps to limit the family court’s authority by shrinking court jurisdiction — limiting who finds themselves in court in the first place — and ultimately shifting the significantly fewer remaining cases into existing civil and criminal courts unburdened by a “munificent” past and generally more focused on due process safeguards. 

Second, and more importantly, we need simultaneously to shift resources into two types of services: universal supports — such as expanded child tax credits or basic income guarantees — and secondary supports that are largely developed and led by the communities currently being harmed by the courts’ current operation. 

Limiting the court’s authority as an immediate step toward abolition requires a hard look at what aspects of court jurisdiction should be radically reduced or eliminated. I have recommended significantly reducing calls to child abuse and neglect hotlines and increasing robust representation for both parents and children, and Aldrich agrees with those recommendations. She did not address, however, the other specific paths I outline to reduce both jurisdiction and overreaching, harmful discretion. These include eliminating status-offense jurisdiction entirely (jurisdiction over youth who misbehave but are not breaking the law); raising the minimum age of juvenile responsibility to the international standard of 14; expanding and applying strict due process protections for youth in the juvenile and adult criminal legal systems; revising and limiting the definitions of abuse and neglect to eliminate indices of poverty as a basis for state intervention; and repealing the Adoption and Safe Families Act (which has destroyed millions of families in the last three decades through termination of parental rights). Shrinking the family court’s authority — combined in New York State with court merger — would provide a clear path for juvenile and family cases that do require legal adjudication to be resolved fairly in other courts. 

Developing multiple paths to reducing jurisdiction must be combined with even more crucial changes: We must alter policies and shift resources from problematic family courts to community-developed and community-led supports and services in order to empower all families striving to raise their children.

What I learned by studying the 125-year institutional history of this so-called ‘socialized’ court was that neither enhanced resources nor the addition of some due process protections for children and parents could reform a court that continued to believe in its own ability to solve family problems, whether by therapeutic or punitive means.

These are not new ideas, nor are they radical. As early as 1914, allies of the court urged that as much support as possible should be readily available in the community to keep children and families out of court. Half a century later, Lyndon Johnson’s 1967 Presidential Commission on Law Enforcement and Administration of Justice issued a famous report, “The Challenge of Crime in a Free Society,” lamenting the juvenile court’s failures and recommending that voluntary, community services were much more likely to be accessed and effective than bringing almost all children into court. Three decades later, in the 1990s, the U.S. Advisory Board on Child Abuse and Neglect pleaded with the country to end the “national scourge” that our child protective system had become, particularly its inability to develop and provide community supports, decrying that “it has become far easier to pick up the telephone to report one’s neighbor for child abuse than it is for that neighbor to pick up the telephone and receive help before the abuse happens” — what current activists call “support not report.” The practice of reporting has only grown since then: One in three children and one in two Black children are subject to investigations by the time they reach 18 years old.

The family court’s role in defending its own expansive authority, premised in its desire to “do good,” is also well-documented, not only during its formative years but ever since. In the 1930s and 1940s, nationally prominent judges pushed back against any criticism of the court. After the Supreme Court in 1967 had excoriated the court’s treatment of children charged with crimes in In re Gault and mandated assignment of counsel in delinquency proceedings, the National Council of Juvenile (and later, Family) Court Judges issued a resolution opposing “any narrowing of the jurisdiction of the juvenile court which would limit or eliminate any of the traditional jurisdictional grounds.” Local, state and national organizations of family court judges continue to fight against reductions in their authority and many have embraced the current “problem-solving court” movement as a return to their historical role as a therapeutic, “socialized” court. 

Aldrich renews this stance by identifying the ostensibly singular role of well-intentioned family court judges to protect children. While I agree with her “that society in general and the justice system in particular have a unique responsibility to children,” society as a whole, and the justice system in particular, have failed in this unique responsibility. In the latest UNICEF report on child well-being in the world’s richest countries, the U.S. placed at the bottom of the list, just edging Bulgaria and Chile for last place. The family court cannot remedy this failure. Nor can family court judges even accomplish their basic responsibilities. In the most recent federal review of whether state child protection systems and family courts are meeting federally mandated standards of practice, the court’s oversight and review of cases was one of the lowest-performing systemic measures

As long as family court judges continue to argue that only they can provide justice to families, we will continue to fail children and their families. Like others, Aldrich holds out that recent reports on New York family courts provide a pathway to family court reform. But these reports uncannily mimic historical reports claiming the same purported pathways — more resources, more judges and more procedural reforms — can make the court more effective and efficient. The “second-class system of justice for people of color” reported in New York, and the second-class system of justice for marginalized families around the country, are not going to be improved by having more judges or task forces or another initiative to address court deficiencies. Change occurs only by recognizing that most of what these children and families need and want belongs outside of court — and that the far fewer children and families who do need a judicial resolution should access courts of law that do not pretend beneficence.