Document Type

Article

Publication Title

Columbia Journal of Law and Social Problems

Volume

40

Publication Date

2007

Keywords

New York Family Court, Court Bias, Ex Parte Communications, ACS, Custody, Adversarial Processing, Institutionalized Differential Treatment

Abstract

That the Family Court is ill-equipped to address the needs of the hundreds of thousands of cases handled therein is not news. Exploding caseloads, complex problems, and minimal resources are just a few of the ingredients that combine to undermine the Court's ability to fulfill its promise. What has been given less attention until very recently is the extent to which the Family Court's failures disproportionately impact low-income families of color. Any analysis of the Court's impact or efficacy must consider the context I have described in my observations of the Court- the images of black and brown litigants hurrying through courtrooms where they are often disrespected. These images raise questions about the role of bias in the Court and the extent to which the Court's failings disproportionately impact people of color. The historic failure to consider the disproportionate impact of Family Court's ills upon black and brown litigants may have set the groundwork for practices that unwittingly perpetuate bias. In the midst of the hurried pace, huge caseloads, and inadequate resources that define Family Court, a number of quick fixes and shortcut practices have emerged. These practices include officially sanctioned shortcuts like the ever-expanding use of court attorney referees to preside over cases, and unofficially sanctioned practices like ex parte communications between certain judges and some institutional providers. While the failures of Family Court create myriad problems for parties who seek justice there, I limit my focus here to examining the officially sanctioned practice of using New York City Administration for Children's Services (ACS) caseworkers to conduct court-ordered investigations in private child custody proceedings as one example of how a seemingly innocuous practice might countenance bias. In many ways, a telling representation of how the norms of practice in Family Court deviate from accepted norms of practice and how that deviation is not just tolerated, but embraced. The standard explanations advanced to justify these deviations focus on the nature of the cases and the enormity of the docket in Family Court - the cases do not lend themselves to traditional adversarial processing; the dockets are crushing and these practices are stop gap measures. I posit an additional explanation: these deviations represent a not-so-subtle case of the kind of differential treatment that gets institutionalized when the consumer is poor and of color, and, as a consequence, disenfranchised.

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