Jessica Klein
In a few months the U.S. will end its COVID-19 national emergencies. But for many institutions, particularly those that, like family courts, have historically lacked resources and serve at-risk populations, the impact of pandemic-era measures are far from over.
Family courts serve survivors of intimate partner and domestic violence, whose cases often span child support, custody, and visitation proceedings. These were all deemed “non-essential” at the start of the pandemic. We spoke to attorney William Silverman, co-author of a 2022 report on how the closures affected the most vulnerable litigants in New York City, where he practices. He talked about the problems that survivors of intimate partner violence still face, three years after the start of the pandemic.
The transcript has been edited for clarity and length.
Your report notes the lack of a crisis management plan in place when family court shut down at the beginning of the pandemic. What did that mean for intimate partner violence and domestic violence survivors who had ongoing cases with their abusers?
Victims of domestic violence — among other vulnerable populations [such as] people of limited means, people of color — were disproportionately impacted by the court not being completely open for an extended period. This all goes back to how the court, at the time of COVID, operated how it had for decades— filing physical pieces of paper, having proceedings and asking questions in person.
And it’s a high-volume court. There were 192,000 filings in New York City Family Court in 2019. That and its lack of sufficient resources made for very difficult decisions by the court.
It distinguished between so-called “essential” matters and “non-essential” matters. The problem, of course, is that this distinction became completely arbitrary. If you’re a victim of domestic violence, and you can’t get child support, you may not be able to leave an abusive home or feed your children and stay out of poverty. In a visitation case, you may not see your child for an extended period. These so-called non-essential cases were anything but non-essential to the individuals who needed relief in court.
Roughly 80% of New York City Family Court litigants have no legal representation, per the report. What additional challenges did they face?
For at least nine months, cases including child support, custody, visitation, and adoption didn’t go anywhere, with some exceptions for so-called emergency matters. Even when they started to proceed, there were long delays between court appearances — longer than usual because of the backup.
I would like to say that, because of this experience, the state legislature has come to the rescue of the family court. But that’s not what happened. In the past year, [the legislature] did approve additional judges, but fewer for family court, and there was no money [allocated to it] in the budget — no bailout or emergency relief for a court serving the most vulnerable people in our society.
There are now about 12 openings for judges that have not been filled in family court, and an overall lack of sufficient staffing, including those who support the judges.
What are delays in family court cases like today?
Delays have improved. I asked around and was told that for support matters, people are waiting four to seven months now between court appearances. For other cases, it’s more like three to four months. It’s still unfortunately long, but it’s better.
Any delay impacts anyone who has a serious case. For people who are experiencing domestic violence, those are among the most serious cases heard in family court. Delays could have catastrophic results.
How have virtual proceedings affected Family Court cases involving DV?
Virtual proceedings — not necessarily virtual trials but routine court appearances — have been tremendously beneficial, especially to victims of domestic violence. It means they don’t have to take time off work or get childcare. They don’t have to be physically close to their abuser in the waiting room or the courtroom.
But we must be sensitive to ensuring people have access to Wi-Fi, a device, and a private space so they can have the same level of access to the court as everyone else. We must be mindful of the digital divide [the gap between wealthier populations with greater access to technology and marginalized populations with less access].
How does gender come into play?
There are issues of gender justice in family court that affect women more than men. That has to do with how domestic violence is treated in cases. There needs to be greater domestic violence training for all judges and court personnel — and not just as a one-off, but on a continual basis.
Could you give an example of how what you’re describing might play out in court?
There’s a concept called coercive control, where someone uses psychological means to control another person. That’s not physical abuse, and sometimes those in the criminal justice system don’t recognize it, because they’re more focused on how many times the abuser hit the victim, thinking that indicates more serious abuse. But psychological abuse can be just as serious. In fact, it can be indicative of even greater physical danger to the survivor.
Understanding how people deal with trauma, and how abusive people manipulate others, is critically important because judges must make determinations as to whether there is domestic violence and whether there is risk to, say, a child in the home.
It’s also important that the culture of the court be respectful of women and people of color, and that the environment be a welcoming one, which is not always the case. A lot of that has to do with implicit bias and institutional racism, but whether it’s implicit or explicit, it needs to be dealt with. One unfortunate consequence of the overall lack of resources is that these compelling issues are not always at the forefront.
And the pandemic exacerbated this?
Yes, the pandemic laid bare decades of inequities. But the pandemic also has the potential to accelerate reform, because it’s bringing these issues to people’s attention and highlighting measures like technology that can make a huge difference. The pandemic was a disaster and a crisis for the court system, but also an opportunity for the court system to learn to change and improve for everyone.
