STRATEGIES AND NEED FOR SYSTEMS CHANGE

Chief Judge Judith S. Kaye of New York delivered the following address to the Millennium Conference of the National Council of Juvenile and Family Court Judges in Washington, D.C., on November 15, 1999. In it, she describes the development of the philosophy of the family court in the past century. Judge Kaye describes the family court's transition from reliance on social science to the incorporation of procedural due process guarantees in the Gault decision. She suggests that a further transformation is required to meet the needs of children and families in the 21st century. Judge Kaye proposes that in the next millennium the family court abandon the "remote adjudicator" judge who evolved after Gault to a "problem-solving model of judging… a judge who looks at the issues that are driving the caseload, who looks at the results that are being achieved, and who uses a hands-on style to figure out how we might do better both in individual cases and on a systemic level."
The New York Times described Chief Justice Kaye as, "A dedicated and effective reformer of the state's sprawling court system. Each of her hard won changes has had a positive impact." Chief Judge Kaye recently received the National Center for State Courts' William H. Rhenquist Award for Judicial Excellence in November 1999. On the occasion of the award, Roger K. Warren, president of the National Center, observed about her,"There are many who are working hard to better process the many cases that come before the state courts, but there are few working an harder or more successfully to better serve the people who use the state courts."     

SUBSTANCE-ABUSING FATHERS IN FAMILY COURT

Although all forms of substance abuse disproportionately affect men during early to middle adulthood, when many are fathering children, the status of substance-abusing men as parents is largely ignored in public policy, service delivery, and research exploring the consequences of chronic drug and alcohol abuse. In this review, the authors highlight issues of potential concern to professionals working with this poorly understood, negatively stereotyped population of fathers in family court settings. After reviewing the existing literature on substance-abusing fathers and their children, the authors challenge family court personnel to use (a) awareness of stereotyping, (b) clinical assessment, (c) the principles of therapeutic jurisprudence, and (d) treatment resources to minimize, as much as possible, the risk for poor developmental outcomes incurred by children with a substance-abusing father.     

WILLIAM H. REHNQUIST AWARD ADDRESS

The William H. Rehnquist Award is one of the most celebrated judicial honors in the country. ¹ It is given each year to a state court judge who demonstrates the "highest level of judicial excellence, integrity, fairness, and professional ethics." ² The 2004 recipient, Judge Leonard Edwards, is the Supervising Judge of the Santa Clara County, California juvenile dependency court. ³ He is the first juvenile court judge to receive this prestigious award. During the 24 years he has held his position, Judge Edwards has worked extremely hard to improve how the juvenile court system serves troubled families. He has founded two organizations to achieve this end, the Juvenile Court Judges of California and the Santa Clara County Domestic Violence Council. ⁴ Judge Edwards serves as a lead judge in San Jose's Model Court, which is one of twenty-five jurisdictions in the country which utilizes new ideas and techniques to improve adoption rates for children in foster care. ⁵ Moreover, he has worked as president of the National Council of Juvenile and Family Court Judges. ⁶ Below is the speech he gave after accepting the award from U.S. Supreme Court Justice Anthony M. Kennedy. The speech notes the importance of the award to everyone working in America's juvenile courts.     

Children Exposed to Domestic Violence: Making Trauma‐Informed Custody and Visitation Decisions

This article explores the risks for young children and the challenges for courts that emerge when parents who are victims or perpetrators of intimate partner violence seek court decisions on child visitation or custody matters. We focus particularly on children age five and younger, a group that is disproportionately represented in families affected by intimate partner violence, and especially vulnerable to its traumatic impact. We examine the literature on children's response to violence between their parents and the literature on parental alienation, a counter‐charge that may arise when one parent alleges violence as a reason to limit the other parent's access to the children. We look at challenges faced by both mental health professionals and courts involved in custody determinations and make policy recommendations to help courts make trauma‐informed decisions that best serve children.     

Ethical Advocacy for Immigrant Survivors of Family Crisis

The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues. Informed and effective advocacy on these issues in family court can make life‐changing, and even life‐saving, differences for immigrants. More specifically, immigration issues are germane to family court because certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings. After describing these forms of relief, and the family court's role in immigrants’ access to them, this essay analyzes how ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings.

Key Points for Family Court Community:
• The involvement of family courts in the lives of youth and families creates significant opportunities for advocates to assist their clients with immigration‐related issues
• Certain vital avenues of immigration relief available to survivors of abuse, neglect, abandonment, and other forms of family crisis explicitly depend on findings, orders, and certifications that are issued in the context of family court proceedings
• The substance of immigration‐related findings in family court, and their ultimate affect on family stability, are consistent with the core family court goal of supporting safety, well‐being, and permanency for children and families
• Ethical mandates related to client counseling, representational goals, and competence affirmatively require family court practitioners to provide advice and advocacy related to these collateral benefits to family court proceedings

     

REEVALUATING WHERE WE STAND: A COMPREHENSIVE SURVEY OF AMERICA'S FAMILY JUSTICE SYSTEMS

The call for court reform remains critical in the face of the growing complexity of burgeoning family law cases nationwide. Many states have restructured their court systems using the unified family court model, resolving legal, personal, emotional, and social disputes with the aim of improving the well‐being of families and children. Other states utilize the traditional approach, resulting in cases being handled in a fragmented, time‐consuming and expensive manner. In this article, Professor Barbara A. Babb presents the results of her nationwide survey regarding how each state handles family law matters. The survey is a follow‐up to her comprehensive 1998 survey and her 2002 survey update. The results of the recent analysis reveal that a total of thirty‐eight states now have either statewide family courts, family courts in selected areas of the state, or pilot or planned family courts, representing seventy‐five percent of states. The number of states without a specialized or separate system to handle family law matters has decreased from seventeen states in 1998 to thirteen in 2006. These changes are significant when one considers the complexities involved in court reform. The need for court reform remains an urgent one, as family law cases occupy a significant percentage of court dockets across the country. Families and children deserve a court system where justice is effective and efficient and where their legal, personal, emotional, and social needs are resolved in a therapeutic and holistic manner.     

A CRITICAL EXAMINATION OF THE SUITABILITY AND LIMITATIONS OF PSYCHOLOGICAL TESTS IN FAMILY COURT

Psychologists are frequently consulted by the courts to provide forensic evaluations in a variety of family court proceedings. As part of their evaluations, psychologists often use psychological tests to assess parents, guardians, and children. These tests can have profound effects on how psychologists arrive at their opinions and are often cited in their reports to the court. However, psychological tests vary substantially in their suitability for these purposes. Most projective tests in particular appear to possess little scientific merit for evaluations within family court proceedings. Despite these serious limitations, expert testimony derived from evaluations using both projective and objective tests is often admitted uncontested. This article reviews the psychometric properties of psychological tests that are widely used in family court proceedings, cautions against their unfettered use, and calls upon attorneys to inform themselves of the limitations of evaluations that incorporate these tests.     

Socializing Distrust of the Justice System through the Family in Juvenile Delinquency Court

Juvenile delinquency courts in the United States generally require parents to attend all court hearings, but little is known about how parents' experiences in the court process affect their discussions of the justice system with their court‐involved children. Using multiperspectival and longitudinal data combining observations with interviews of parents and youth in two courts, this research finds that many parents discuss the legal process in negative terms with their children when parents are outside the presence of legal authorities. This research adds to the literature on legal socialization by examining how parents' perceptions of law and their experiences with the court become part of the socializing content provided by parents to their court‐involved children. Creating a more meaningful role for parents in the juvenile justice process may potentially lead to more positive discussions of the court process between parents and juvenile defendants.     

Parenting Plans for Special Needs Children: Applying a Risk‐Assessment Model

Family courts are seeing an increasing number of separating or divorced families who have a special needs child. These cases present complex challenges for family law professionals charged with crafting parenting plans based on best interests standards. For many of these children, the typical developmentally based custodial arrangements may not be suitable, given the child's specific symptoms and treatment needs. We present a model for understanding how the general and specific needs of these children, as well as the demands on parents, can be assessed and understood in the context of divorce. This includes an analysis of risk and protective factors that inform timeshare and custodial recommendations and determinations. The risk assessment model is then applied to three of the most commonly occurring childhood neurodevelopmental and psychiatric disorders likely to be encountered in family court, namely, attention deficit/hyperactivity disorder, depressive disorders, and autistic spectrum disorders.

Key Points for the Family Court Community
• There has been a dramatic rise in the population of children with neurodevelopmental, psychiatric, and medical syndromes whose parents are disputing custody in the family courts.
• Family law professionals of all disciplines should develop a fundamental knowledge base about the most commonly seen special needs children in family court, such as those with neurodevelopmental conditions like autistic spectrum disorder, attention deficit/hyperactivity disorder, and severe depressive disorders (especially with teenagers), which may involve suicidal or self‐harming behaviors.
• Commonly recommended parenting plans may be inappropriate for many special needs children, as some function significantly below their chronological age and pose extreme behavioral challenges.
• A systematic analysis of risk and protective factors should inform timeshare arrangements and determinations with this varied population, including the safety of the child and severity of the disorder, parental commitment and availability to pursue medical, educational, and therapeutic services, the parental attunement and insightful about the problem, and the differential parenting skills of each parent.

     

Canada’s First Integrated Domestic Violence Court: Examining Family and Criminal Court Outcomes at the Toronto I.D.V.C.

This is the first quantitative study to examine Canada’s only Integrated Domestic Violence Court. The methodology used a quasi-experimental design with parallel groups with baseline equivalence. Results demonstrate that when support services are provided to victims of domestic violence during family separation, children benefit from greater involvement with both parents. There was more compliance with child support in the integrated court than the comparison group and compliance in custody and access were two variables that predicted the type of final custody orders. There were fewer judges involved in the IDVC court than comparison group; however, there were no differences in the number of court appearances between groups. The IDVC demonstrates a promising intervention to address domestic violence that involves both criminal and family law courts. Future research is needed to explore the views of children, victims and offenders about their experiences with the IDVC.     

Reflections on International Criminal Justice

Judge Cassese presents arguments in favour of the use of international courts in order to punish war crimes. He argues that the application of justice through a court is better in certain circumstances than amnesties. He examines the merits of international courts rather than national courts, but acknowledges that at present there are several major stumbling blocks to an effective international criminal justice system.     

Confidentiality and the Juvenile and Family Courts

Court proceedings and court records are traditionally open to the public. The courts are public institutions, and openness serves a number of important purposes including protection of the free discussion of governmental affairs and the enhancement of the quality and integrity of the fact finding process. But court proceedings also address family matters including adoptions, juvenile delinquency, child protection, and domestic relations cases. These types of cases often involve personal issues, and many family members would prefer that they remain private. In most states, many of these proceedings have been closed to the public. Strong policy reasons support both openness of family court proceedings and privacy considerations for family members, particularly children. This article addresses confidentiality in the context of juvenile and family court proceedings. It takes the position that the tension between these conflicting policies can be reduced if most family court proceedings are presumptively open, but judges are given the authority to place conditions on the information that can be revealed by observers outside the courtroom. Additionally, the article asserts that if the courts and the media take steps to change their practices and their relationship with one another, both the public interest and the confidentiality interest of the parties can be better served.     

ROMANCING THE COURT

Problem‐solving courts, created at the end of the twentieth century, make court‐based solutions central to addressing significant societal problems, such as substance abuse and its impact on criminal activity and family functioning. Yet, lessons gleaned from over 100 years of family court history suggest that court‐based solutions to intractable social problems have rarely been effective. This article asks three questions of the problem‐solving court movement: What problem are we trying to solve? Is the court the best place to solve the problem? What are the consequences of giving authority to a court for solving the problem? Answering those questions through the lens of specific examples from family court—the original problem‐solving court—leads to the conclusion that neither the structural issues that courts face, such as overwhelming numbers of cases, nor the momentous societal issues that problem‐solving courts have recently begun to shoulder can be adequately addressed through court‐based solutions. The factors that allegedly distinguish new problem‐solving courts from earlier exemplars, especially the family court, are both less unique and less successful than they have been portrayed by problem‐solving court enthusiasts. These factors alone fail to justify the expansion of problem‐solving courts without further evidence of their effectiveness. Moreover, the potential dangers inherent in problem‐solving courts are not theoretical. By examining illustrative examples from the history of the family court, the dangers become clearly apparent.     

Against the Grain: Therapeutic Judging in a Traditional Family Court

The last several decades have seen a proliferation of specialized courts, including within the family court system, that deviate from the adversarial model, and that rely on therapeutic jurisprudence and other problem‐solving techniques. Whether and how traditional family courts can incorporate the best practices of these specialized courts is a largely understudied area. Drawing from ethnographic observations of a traditional urban family court, this study finds that some judges are able to transform nontherapeutic courtrooms into therapeutic ones despite obstacles. These “against the grain” actors, who act contrary to the institution's dominant norms and practices, demonstrate how therapeutic jurisprudence and other problem‐solving techniques can be utilized in traditional courtrooms.     

Unique Role of the Court

The court is a unique and vital institution within the American system of government. The court's fundamental responsibility is to assure that all members of society are protected under law from harm by others. Juvenile and family courts have, within this system, the equally important responsibility to protect the best interests of children, families, and communities. These responsibilities convey to the courts a role vital to our anti-substance abuse efforts on behalf of society and especially on behalf of children and their families. Such efforts must recognize the existence of non-traditional, as well as traditional, family units within today's society.     

IV. Unique Role of the Court

The court is a unique and vital institution within the American system of government. The court's fundamental responsibility is to assure that all members of society are protected from harm by law. Juvenile and family courts have, within this system, the equally important responsibility to protect the best interests of children, families, and communities. These responsibilities convey to the courts a vital role on behalf of society and especially on behalf of children and their families, to reduce the harmful effects of substance abuse.     

Troubled Children and Children in Trouble: Redefining the Role of the Juvenile Court in the Lives of Children

This Essay considers the emerging research in the area of dual‐jurisdiction children, often referred to as “crossover kids”—those currently or previously involved in maltreatment proceedings who have also committed delinquent acts. Part I describes the development of the juvenile courts in the early twentieth century. Part II of this Essay questions the need to “track” children along one legal path or another and points to the pitfalls of providing services to some children through a criminal justice paradigm instead of treating all children through a social work paradigm. Finally, Part III advocates a redesign of the juvenile court—a return to its roots—to better enable a court to consider the needs of the whole child, in context with the needs of her/his family.     

Asking the Right Questions: Utilizing a Judicial Checklist to Track the Educational Success of Youth in Foster Care

Asking about the educational objectives for children in foster care has not been a priority in most juvenile and family courts. Research has shown that compared to the general school population, children in foster care have lower grade point averages, change schools more frequently, earn fewer credits toward graduation, and are more likely to be placed in special education programs. In response, Casey Family Programs, in collaboration with the National Council of Juvenile and Family Court Judges' Permanency Planning for Children Department, developed a Judicial Checklist with key educational questions to be asked from the bench. The Checklist has become a useful tool for juvenile and family court judges when assessing the effectiveness of current educational placements of the children who come before their courts, tracking their performance, and in making a positive future impact on their educational outcomes.     

Crossover Cases of High‐Conflict Families Involving Child Protection Services: Ontario Research Findings and Suggestions for Good Practices

Child protection services (CPS) are increasingly becoming involved in high‐conflict separations and the related custody and access proceedings. CPS involvement is often necessary to respond to abuse or neglect allegations or protect children from emotional harm. However, these crossover cases are very challenging for family justice professionals. This article reports on research on crossover cases in Ontario, including an analysis of reported court decisions, a survey of CPS staff, and interviews with family justice professionals. We suggest clearer CPS policies; improved understanding of respective professional roles; CPS summary reports for family courts; increased interagency coordination, communication, and training; and use of judicial case management.     

LANGUAGE AND CULTURE IN CHILD LAW

In 1989, England and Wales adopted the Children Act, a revolutionary and pioneering statute changing the language of the law in regards to the needs of children. Judge Nigel Fricker, the family court judge in York, formerly in Sheffield, describes this change and some of its effects on the practice of judging, the law, and the behavioral sciences regarding children.