November 4, 2015

Giving Low-Income Parents
A Better Alternative to Family Court

By Jane C. Murphy

By all accounts, the New York City Family Court is in a state of crisis – one felt most crushingly by the people who appear before it.  Often described as “the poor people’s court,” it hears, among other issues, child paternity, support, custody, and visitation cases typically, but not exclusively, involving non-marital parents.  (Divorces, often involving parties having both more resources and property disputes, are heard in the less crowded and better-funded State Supreme Court.) 

For years, a succession of blue-ribbon panels has described the endemic case delays and overcrowded dockets in Family Court. For the clients involved, these regularly translate to lost work days in often-dispiriting courthouse settings and intrusive court-ordered family evaluations.  Even though the State Legislature funded nine additional New York City Family Court judgeships in 2014, many reformers doubt this alone will be sufficient. It also doesn’t address a core problem: That the cases Family Court hears aren’t primarily discrete legal events, but instead are elements in ongoing family reorganizations.
That’s why in our new book, Divorced from Reality: Rethinking Family Dispute Resolution, my co-author Jana Singer and I argue for a different and we think better approach: Giving more poor families access to community-based mediation, legal representation, and related services. Such alternatives to court could perhaps be piloted by urban universities where faculty and students could offer the range of legal, social work, financial advice, and other help clients need.
We think there are at least three big potential advantages to moving family disputes out of court.  First, it would reinforce the message that, particularly where children are involved, a onetime judicial pronouncement is unlikely to accomplish a family reorganization that instead requires ongoing planning and collaboration by a range of family members. It would re-characterize them as steps in a life transition, rather than as an event requiring heavy-handed state involvement. It could result in encouraging parents to take greater personal responsibility for resolving their current and future disputes.
Second, shifting the process out of the courts and into the community should make it more user-friendly. The dispute resolution services we envision would likely be more culturally sensitive than the courts are, and would smooth linkages to programs critical to family well-being, such as housing and child-care assistance.
Third and finally, disaggregating the majority of family disputes from the court system would allow Family Court to focus on what it does best and what it alone can do: Authoritatively resolve high-conflict cases and protect vulnerable family members.
New York’s court system already has a “collaborative law center” that offers free divorce mediation and limited access to lawyers and other professionals to some low-income families.  Its availability and scope of services are, however, too narrow. The more expansive model we envision, based on experiments in some other jurisdictions, would build on its work.  It would mirror the way better-off families increasingly resolve their disputes, by providing them with, for example, financial planning and mental health services as well as helping them craft agreements that the courts can ratify. 
Models for what we’re proposing already exist, in distant Australia and more nearby in Denver. Such alternatives won’t replace courts for cases when parents refuse to support their children or if they harm vulnerable family members.  They can, however, reduce the heavy burdens on Family Court while providing families in transition what they truly need:  A healthier process for healing through collaborative resolution of conflicts. 


Jane C. Murphy is Laurence M. Katz Professor at the University of Baltimore School of Law. She is co-author of Divorced from Reality: Rethinking Family Dispute Resolution [NYU Press 2015].

Photo by: Alexander Bryden