Posted in: Motherhood & Custody
Published on Sep 02, 2020 by Natalie Pattillo
How Covid-19 Amplifies the Failures of Family Court
In March, a court ruled that Brenda, a mother who lives in Sacramento, California, was being sexually harassed by her ex-husband, with whom she shares custody of her twelve-year-old daughter, Jean. (To protect their privacy, names of these sources have been changed.) Despite this, on March 17, as the coronavirus began to encroach on California, a judge ordered that Jean would still have to spend every other week at her father’s home, including overnight visits.
Brenda and Jean’s experience of feeling trapped by a family court mandate that jeopardizes their safety is widespread throughout the country. In late March, the day before the courts closed for all non-essential functions in response to the Covid-19 pandemic, a New York City-based survivor of domestic violence filed a petition to terminate the unsupervised visitations between her abusive ex-husband and her child. Though the courts had previously ordered these visits, the survivor felt like her abuser’s menacing behavior was escalating. He had been violating an order of protection by picking fights, calling incessantly, and sending her threatening and harassing text messages, according to Anna Maria Diamanti, her lawyer. (Diamanti is the director of the family and matrimonial practice at Her Justice, a nonprofit organization that provides free legal services to low-income women.) A few days later, the court granted Diamanti’s client a virtual hearing. Yet, in early April, when her client called the court on the date the judge assigned, there was no answer. After finally reaching a court clerk, she was told that her hearing was not on the docket, that they couldn’t find her petition and that she’d have to file again. After a month of unsuccessful attempts to even get a hearing, New York City had become an epicenter of the coronavirus outbreak. Despite the court’s previous order, Diamanti’s client decided to stop sending her child to parental visits.
In early April, New York City Comptroller Scott Stringer sent a letter to Jeanette Ruiz, who serves as administrative judge in the family court system, stating concerns that the family court wasn’t offering clear communication or public guidance about how people could obtain orders of protection, which could further endanger survivors. Stringer told me in an email that he’s concerned that messaging from the court continues to be primarily in English, which leaves many immigrant survivors in the dark when it comes to obtaining protective orders and understanding their options if an abuser is threatening to harm them and/or their children. “The courts must adapt more quickly to expand capacity and meet survivors where they are so no one falls through the cracks,” he said. Over five months have lapsed since New York City family courts closed and most hearings went virtual, yet a timeline for when new custody and visitation petitions will be heard remains completely uncertain, said Diamanti.
Knowing that courts and law enforcement are understaffed and scrambling during the pandemic, many abusers are emboldened, social workers, mental health counselors, and lawyers report, to violate orders of protection and harass or abuse their ex-partners and children—both physically and virtually. Failures of the courts to deal swiftly and appropriately with domestic violence pre-dates the pandemic, but the coronavirus has revealed how systemic shortfalls can further endanger survivors and their families.
Abusers often use their children as pawns to control and punish their exes, especially if they have custodial rights, Ruth Glenn, the president and CEO of the National Coalition Against Domestic Violence, told me. She added that the pandemic places immense stress on domestic violence victims who are stuck at home with their abusers, as well as those who have left violent relationships but are forced to maintain contact with their exes because of child custody and visitation orders from family court.
Threats and harassment couched in co-parenting negotiations are common forms of domestic abuse. For instance, before and during the pandemic, Diamanti’s client was receiving threatening calls from her ex-husband—a violation of the order of protection she had against him and grounds for mandatory arrest in New York State. But after calling the police to report the harassment, she never heard back.
In late April, nearly a month after she filed her first petition, her ex tracked her and her child down while they were visiting a relative. He approached her on the street and beat her, causing severe injuries to her head and body. Her child witnessed the entire assault. With the help of Her Justice, she filed to show that her ex had violated the order of protection, asking the courts once again to end the mandated visits. Her new petition was filed electronically and she received a court date. Finally, in May, her ex-husband’s access to visitations with the child were temporarily revoked pending ongoing litigation.
“This whole scenario was created in part because she couldn’t get that relief before the pandemic occurred. He was already engaging in threatening behavior,” Diamanti told me. “She was reporting him to the police. Nothing had been done about it. Then the pandemic shuts everything down and puts her in a far more dangerous and vulnerable situation and he takes advantage of it.”
In early May, the New York City Council held a virtual hearing to uncover the effects of Covid-19 on those whose lives have been affected by family violence. Advocates who work for domestic violence organizations testified that the NYPD’s response to victims’ calls were deeply concerning. Judy Kluger, the executive director of Sanctuary for Families, a New York City-based organization that offers legal, counseling, and shelter services to victims of domestic violence, said one client contacted two police precincts, who told her they could not enforce her protective order unless she had a hard copy. “Of course, she had only received the order by e-mail because the courts were closed,” said Kluger, adding that only after multiple late night calls with a lawyer from the organization did the police agree to help. Another advocate, Rahnum Tasnuva, who answers hotline calls for Womankind, an organization that offers a 24-hour multilingual hotline, legal support, and temporary housing to survivors of gender-based violence in New York City, said that police often failed to respond promptly to domestic violence incidents even before the Covid-19, but now officers are even more delayed.
Family court has long left dangerous gaps in protection for survivors and children. In 2016, two-year-old Kyra Franchetti was killed by her biological father, Roy Eugene Rumsey, in a murder-suicide. Jacqueline Franchetti, Kyra’s mother, told me that six months before Kyra was killed, Franchetti, who left Rumsey while she was pregnant, repeatedly warned family court officials that he was dangerous and abusive, that he been stalking her and threatening suicide. During custody and visitation hearings on Long Island, where Franchetti lives, she told me she presented court officials with evidence that Rumsey had violated court orders multiple times and was unfit to parent. Nassau County judge Danielle Peterson called Franchetti’s stalking claims “just allegations,” and said, according to court transcripts obtained by the Albany Times Union, “I haven’t heard anything in this case that would make me think that Mr. Rumsey is an inappropriate guardian for this child.”
“When you look at Covid-19, this is an abuser’s paradise,” Franchetti told me. In December 2016, she founded the Kyra Franchetti Foundation to raise awareness about the dangers of family violence. “To have courts not opened, to not have direction from the courts—[abusers] are going to try to make up their own rules,” she continued. “It was absolutely terrifying before Covid-19 and now it’s even more dire.”
Franchetti, who is advocating for family court reform by sharing Kyra’s story with legislators across the country, said that parents have been reaching out to her on social media about their experiences with abusers who are preying on the fear and uncertainty caused by the pandemic and exacerbated by family court dysfunction. She has heard from women whose abusers have shown up at doorsteps to take their children, defying court orders, and survivors whose abusers are choosing not to social distance with their children even when the other parent—or someone else in the child’s primary home—is immunocompromised. Some abusers have refused to return the child to the other parent, claiming that they do not need to adhere to the court-ordered visitation schedule because schools are physically closed—disregarding that the child must be present for remote learning throughout the week.
New York City family courts are “chronically overburdened and under-resourced, plagued by high caseloads, overworked staff, and a stubborn legacy of dysfunction and delay,” according to a report published by The New School’s Center for New York City Affairs in 2016. The report states that “untenable caseloads” lead to “inefficient hearings,” where cases are left in limbo for months, “facts get forgotten and must be repeated,” and “families are dragged through a prolonged and terrifying process.” The system is overloaded, sometimes requiring judges to make life-altering decisions after spending no more than thirty minutes on a custody and visitation case involving domestic violence. With the pandemic, the family court’s backlog has inevitably increased. And fatigued or poorly trained court officials are even more likely to miss the red flags that survivors raise about abusive behaviors.
Diamanti agrees that family courts suffer, in part, due to underfunding and insufficient staff. She told me that New York state legislators have crafted and passed robust laws on how court officials should handle cases involving intimate partner violence, yet the corresponding funding to implement changes, like hiring the best people and regularly training them, hasn’t come through. On top of that, the court’s outdated computer systems and processes can lead to communication deficiencies, failure to respond to urgent situations, haphazardly-made decisions, and administrative errors, like the one her client experienced when the court clerk couldn’t locate her petition. Abusers can exploit the system’s flaws and delayed action, especially during the pandemic, because there’s a sense that courts can do very little, if anything, to hold them accountable for virtual or physical stalking, sending menacing text messages, destroying a victim’s financial credit, or berating a child or the other parent over court-ordered FaceTime access. During the pandemic, more so than ever, courts are taking a reactive approach rather than a preventative one, by only hearing cases that they deem an emergency, which may include instances where a parent is refusing to return a child, or a child or other parent is in an acutely physically dangerous situation.
These systemic flaws are intensified when judges, custody evaluators, and attorneys for the children bring their biases about what’s expected of a mother’s care, compared to a father’s, into custody cases involving domestic violence and child abuse. Based on her analysis of hundreds of legal documents and conversations with custody experts and mothers, fathers, and children from a range of backgrounds over the course of twenty-five years, the psychologist Phyllis Chesler came to the conclusion that patriarchal attitudes can lead to prejudice toward mothers during custody disputes in her book Mothers on Trial: The Battle for Children and Custody (2011), which is updated from her 1986 book of the same name. She wrote that mental health experts—who can greatly influence a judge’s decision—“like the rest of us, tend to blame mothers, not fathers, for any problems a child may have; to praise fathers, but not mothers for the good they may do; and to have one set of expectations for mothers and another, lesser set for fathers,” adding that when a woman fails to meet expectations of what a mother should be, she is pathologized. Chesler cited a case in New York in which a mother told the custody evaluator that her husband had abused her and threatened to kill their child’s dog if the child didn’t obey him. The evaluator disbelieved the mother and claimed that “she is too self-confident, too bossy” and earns too much (“more than the father”) to be a victim of domestic violence.
Experts point out that misogyny in the court system can lead to dangerous outcomes for children who are being abused by their fathers. Mothers who raise claims of domestic or child abuse are twice as likely to lose custody when fathers respond by claiming “parental alienation” as when fathers don’t claim alienation, according to a study that examined 4,400 family court cases throughout the country from 2005 to 2015 by Joan Meier, a professor of clinical law at George Washington University, with Sean Dickson. “Parental Alienation Syndrome,” a widely rejected theory coined by child psychiatrist Richard Gardner, asserts that a child who is traumatized by communication and/or visits with an abusive parent is only reacting that way because the other parent, who he claimed is often a vengeful mother, brainwashed or “alienated” the child to dislike the abusive parent. Gardner became an expert witness in more than 400 trials on child custody, citing this theory, which was not developed by scientific research methods.
During the pandemic, even a parent who wants to keep their child away from an abuser can be accused of “alienating.” Guidelines from the National Council of Juvenile and Family Court Judges (NCJFCJ), a judicial membership organization that aims to provide guidance to judges and court officials on cases involving domestic violence, advise that any “parental alienation” claims should be ruled inadmissible. But discretion is up to the judges, said Barry Goldstein, the secretary and research director of the Stop Abuse Campaign, a nonprofit that works to prevent childhood trauma through better public policy and public education. Goldstein said that “one of the things that [the NCJFCJ] told us is that when they do trainings, there are judges who don’t want to be there and don’t pay a lot of attention.”
With Covid-19 putting additional strain on people and an already overtaxed system, one has to wonder, would victims be facing these grave dangers amid a pandemic if an abuser’s parental rights weren’t competing with a child’s safety in the first place?
Brenda, the mother in California, said that over the past four years, her daughter Jean would often call Child Protective Services and law enforcement officials while she was at school. Jean hoped that by disclosing her father’s abusive behavior to CPS and police, they could stop him from picking her up for visits. Jean feels unsafe with her father, Brenda told me over the phone, because he films her without her consent and implies that if Jean tried to get away from him, he’d hurt himself and her. When social workers and police officers responded to Jean’s calls for help in the past, they told her their hands were tied and they had to follow the family court order. “They don’t see bruises on her so they conclude he’s not being abusive,” Brenda explained. “Is my child suffering? Yes. Will she tell you she is? Yes. Does that do anything? No. Nothing.”
A disorganized and under-resourced court is making it more challenging for victims like Brenda to prove that their child is in danger. The pandemic has revealed that the family court system is so riddled with deep-seated, fundamental dysfunctions that it requires an overhaul.
In order to rectify these systemic issues, the courts must first commit to understanding how domestic violence affects children and to prioritizing their safety. Children are at greater risk of being abused when one parent is abused by the other parent, according to a handbook published by the NCJFCJ. David Katz, a presiding judge for the New Jersey Superior Court, Family Division, is a board director for the NCJFCJ and vice-chair of the Family Violence and Domestic Relations Advisory Committee. He told me that weighing those risks would require that in making their orders, judges take into greater consideration how abusers can exploit court-mandated access to children to exert coercive control or even inflict violence.
Each year about 58,500 children in the US—highlighted as a conservative estimate—are court-ordered into the unsupervised care of a parent who has abused a child, which suggests that many judges throughout the country don’t in fact take the dynamics of domestic violence into consideration, according to research from the Leadership Council on Child Abuse and Interpersonal Violence.
After nearly four weeks of following the visitation order, Jean refused to attend court-ordered visitations at her father’s home, where he wasn’t taking shelter-in-place and social-distancing protocols seriously, according to Brenda. Brenda has not forced Jean to visit her biological father, and she said she is now facing fifty counts of criminal contempt for violating a court order, each count carrying a potential fine of $1,000 or five days in jail. In July, she had a court appearance via Zoom for these charges and will have another hearing in September. Before the hearing in July, Brenda was worried that the judge would perceive her as a mother guilty of “parental alienation,” which she said Jean’s father is claiming, but she hopes that there’s enough documentation to fight the contempt charges and ultimately keep Jean safe.
Brenda said that during the July hearing, the judge determined that he will allow Jean to testify and that the court’s decision will be based solely on her needs rather than the requests of either parent. (A child’s wishes in custody and visitation cases are sometimes considered based on a judge’s discretion and the child’s age.) During the Zoom appearance, Jean’s father didn’t make any requests for emergency visitations. Brenda feels that he’s “more concerned with getting me charged with something” than anything else.
During the May New York City Council meeting, Amy Barasch, executive director at Her Justice, along with staff at other domestic violence organizations, emphasized the importance of the Office of Court Administration (OCA), the administrative arm of the New York State court system, making information about “what the courts are doing or not doing” available to the general public, not just to the attorneys working on these cases.
“It would relieve a burden from us in disseminating that information so we could do more direct representation for our clients,” she said. “I can’t tell you how much time we spend, both with volunteer attorneys and clients, trying to explain what is or isn’t available in the court system now.”
But at the hearing, councilmember Rory Lancman said that he’s not optimistic because OCA doesn’t typically communicate its memos in lay terms. On top of the complicated legalese, immigrants who are non-English speakers face the further challenge of translating the court’s messages.
Because the pandemic has exacerbated long-established cracks in accountability that exist in the family court and law enforcement system, domestic violence organizations are finding innovative ways to offer support: legal helplines and hotlines via phone and text messaging, creating plans for victims to remain safe from abusers, counseling for adults and children, and access to food, housing, laptops, and monetary aid to survivors of all backgrounds. These local organizations are filling time-sensitive gaps left by austerity and a divestment from social services.
Rachel Braunstein, director of policy at Her Justice, is not hopeful the system will keep up with need: “The court itself has said it will take years to work through the backlog caused by court closure in the pandemic.” How many families will suffer or find themselves in grave danger in the meantime?
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