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«White Paper on Improving Help Centers in New York State Family Court Prepared for the Fund for Modern Courts Family Court Task Force November 2009 By ...»

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White Paper on Improving Help Centers in

New York State Family Court

Prepared for the Fund for Modern Courts

Family Court Task Force

November 2009

By Amelia T.R. Starr, Fiona McCarthy*,

Jason M. Spitalnick & Andrew Wolinsky*

Davis Polk & Wardwell LLP

*Not Admitted to Practice

The Fund for Modern Courts

351 West 54th Street New York, New York 10019

www.moderncourts.org justice@moderncourts.org


PAGE I. Executive Summary

II. Need for Change in New York Family Courts

1) Equal Access and Unrepresented Litigants in New York

2) New York Family Courts

III. The Goals of Help Centers

1) What Is a Help Center?

2) What Functions Do Help Centers Serve?

IV. Various State Approaches to Help Centers

1) California: Self-Help Center Pilot Program

2) Illinois: Models for Integrating Web-Based Resources

3) Alaska: Family Law Hotline

V. Help Centers in New York Family Courts

1) New York City Family Courts

2) Family Courts Outside of New York City

VI. Recommendations for New York Family Courts

Recommendation 1: Staffing Help Centers

Recommendation 2: Integrating and Capitalizing on Technology

Recommendation 3: Collaboration with the Court and Community

Recommendation 4: Physical Space

Recommendation 5: Language Access

Recommendation 6: Assessment

i I. Executive Summary

Equal access is a cornerstone principle of our judicial system. In New York Family Courts, where more than 80 percent of litigants proceed without counsel, that principle is at risk.

Unrepresented litigants are often overwhelmed by legal complexities and procedural hurdles.

Court staffs are not prepared (or, sometimes, permitted) to provide the assistance litigants may need. Given the critical importance of the issues addressed in Family Court, unrepresented litigants are in dire need of support. The status quo is untenable.

This report examines the challenges faced by unrepresented litigants and the valuable role that help centers play in ensuring that such litigants can effectively advocate for their interests and the interests of their families and children. Broadly defined, help centers are operational systems that assist unrepresented litigants in navigating the court system. They commonly exist as physical locations that litigants can visit, but can also operate as virtual resources.

During the summer of 2009, we conducted research to understand how litigants can and do use these help centers. This report contains our findings, including examinations of the needs of unrepresented litigants, the goals of family courts, the approaches used by other jurisdictions, and the current state of help centers in New York. Finally, this report offers six sets of recommendations to court and help center administrators. The recommendations, which we hope will serve as useful guidelines, incorporate concerns about costs, available space, and other

resource constraints. Our recommendations are:

• Staffing. Help centers should be supervised by managing attorneys, should be staffed with legal and non-legal volunteers, and should be available outside of business hours.

• Technology. Court Web sites should provide plentiful, accurate information to litigants.

Family Courts should implement electronic case filing to increase convenience and ultimately decrease costs. Litigants should have access to remote interactive assistance, including telephone hotlines and Internet chat modules.

• Collaboration. Help center administrators should collaborate with both court officials and community organizations in order to maximize the scope and quality of services offered to unrepresented litigants.

• Physical Space. Help centers should be readily accessible to litigants and designed to provide high quality service quickly and efficiently.

• Language Access. Help centers must meet the special needs of those with limited literacy and limited English proficiency.

• Assessment. Help centers should engage in self-evaluative processes in order to improve service and demonstrate cost-effectiveness.

–  –  –

Our legal system is, from an “intellectual, jurisprudential, and even physical” perspective, built on the assumption that every litigant has a lawyer literally standing beside him or her. 1 Many litigants, however, are unable to afford legal representation and are left to navigate the system on their own. 2 While the judicial process can be intimidating to all, it is especially daunting to unrepresented litigants, who are unlikely to be familiar with its specialized terminology and etiquette, and its complex procedural rules. In this “unfamiliar and often confusing universe of the courts, litigants attempt to handle legal matters involving the most essential aspects of their, and their families’, well being.” 3 Unrepresented litigants face numerous barriers to accessing the legal system. 4 Without attorneys to guide them, they are unlikely to know where and how to access the information they need to pursue claims or defend themselves. They may also have difficulty sorting through the inevitable sea of paperwork and meeting the myriad procedural requirements and deadlines. For the few who manage to navigate the system successfully, perhaps the greatest challenge of all awaits: a court appearance. 5 All of these problems are exacerbated when an unrepresented litigant is less than completely literate or has limited English language proficiency.

These barriers to access are detrimental not only to individual litigants, but to the judicial system itself. Where judicial access is not equally available to all, many meritorious claims are not brought—and justice is not served. Procedural hurdles result in incorrect paperwork, stalled proceedings, and backlogged dockets. The results are frustrating for litigants, 6 court staff, and judges alike.

The situation is particularly acute in New York’s Family Courts, which handle some of the most important, personal, and sensitive issues the courts face, including child abuse and Richard Zorza, The Self-Help Friendly Court: Designed from the Ground Up to Work for People Without Lawyers 11 (National Center for State Courts 2002) [hereinafter “Zorza”].

As discussed below, New York provides lawyers for litigants in Family Court only in limited circumstances and most legal services organizations only provide lawyers to persons falling below a certain percentage of the poverty line.

Office of the Deputy Chief Administrative Judge for Justice Initiatives, Expanding Access To Justice In New York State 20 (March 2009), available at http://www.nycourts.gov/ip/nya2j/pdfs/tenYearReport3-12-09.pdf (October 19, 2009) [hereinafter “Expanding Access”].

For a discussion of barriers to access, see Zorza, at 17-18.

As Angela Britton, a Court Attorney to the New York City Family Court, described, unrepresented litigants often “yes everyone to death” in an attempt to get through the hearing. Thus, the problem is that they come out the other end unaware of their rights, what they have been told, and what to do next. Interview with Angela Britton, Court Attorney to the New York City Family Court, in Kings County Family Court (June 11, 2009).

According to Britton, they often experience “litigant fatigue” and at times give up on the process all together. Interview with Angela Britton, Court Attorney to the New York City Family Court, in Kings County Family Court (June 11, 2009).

neglect, adoption, child custody, domestic violence, paternity, juvenile delinquency, and child support. Despite the critical importance of these issues, more than 80 percent of Family Court litigants proceed without the assistance of counsel. 7 This amounts to hundreds of thousands of cases each year with the potential for confusion, backlog, and injustice. Ensuring that those who cannot afford an attorney can successfully navigate the Family Courts is therefore essential.

1) Equal Access and Unrepresented Litigants in New York New York is committed to providing equal access to justice for all individuals. The New York Lawyer’s Code of Professional Responsibility states that “[a]ll litigants and lawyers should have access to tribunals on an equal basis.” 8 It further states that “[p]ersons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in appropriate activities designed to achieve that objective.” 9 One way to ensure equal access is by providing the unqualified right to counsel in all cases. Litigants in Family Court do not, however, enjoy a general right to counsel. Section 262 of the Family Court Act states that litigants in Family Court have the right to counsel only in limited circumstances. 10 While most litigants in custody, domestic violence, contested adoption (contesting parent only), and paternity (respondent only) proceedings are entitled to counsel, all other litigants are left out, including those seeking child support. 11 This is particularly troublesome because child support is by far the most crowded portion of the docket, accounting for nearly half of all Family Court filings. 12 The New York court system recognizes this representation gap and the need to address it.

“Central to accomplishing the Unified Court System’s mission of assuring equal access to justice for all New Yorkers is the job of assisting litigants without lawyers to use the courts as See The Fund for Modern Courts, A Call to Action: The Crisis in Family Court app. B, at 1 (Feb. 2009), available at http://www.moderncourts.org/documents/family_court_report.pdf (last visited October 19, 2009).

New York Lawyer’s Code of Prof’l Responsibility EC 7-35 (2009).

New York Lawyer’s Code of Prof’l Responsibility EC 2-16 (2009).

New York Family Court Act § 262.

See id. Other publicly funded legal aid organizations often do provide free legal advice to unrepresented litigants in Family Court, but only if he or she meets certain criteria. For example, Manhattan Legal Services will provide a lawyer free of charge only if the litigant’s income is at or below 200 percent of the poverty level.

Similarly, to receive a free lawyer from Safe Horizon, a domestic violence prevention organization, the litigant must actually be experiencing domestic violence and be at or below 187.5 percent of the poverty level. Other organizations, like The Door and Legal Action Center of the City of New York, do not have financial screening criteria, but will only provide free counsel to members of a particular social group. See, e.g., www.lawhelp.org/ny (follow “Family & Juvenile” hyperlink; select “Kings (Brooklyn)” from drop-down menu; follow “Domestic Violence” hyperlink).

New York Family Court Act § 262; State of New York: Report of the Chief Administrator of the Courts, 21 (2007), available at http://www.courts.state.ny.us/reports/annual/pdfs/2007AnnualReport.pdf [hereinafter “State of New York 2007 Report”].

effectively as possible.” 13 The Rules of Conduct for Administrative Law Judges and Hearing Officers of the City of New York also require that New York City Administrative Law Judges and hearing officers liberally construe and allow amendment of papers prepared by unrepresented litigants, be attentive to language barriers, and question witnesses themselves to elicit information and obtain clarification. 14

2) New York Family Courts Ensuring equal access to the hundreds of thousands of New York State Family Court litigants who are unrepresented is a challenging task. 15 The Family Courts are the busiest courts in New York. In 2007, 709,293 cases were filed in Family Court, accounting for sixteen percent of the total filings in the state. 16 The actual volume of Family Court business is higher than the numbers suggest–including repeat appearances, there are nearly two million total appearances in Family Court each year. 17 Yet the legislature has only provided 47 Family Court judges in New York City and just 149 Family Court judges in the entire state. 18 The resulting backlog undermines the very purpose of the Family Court system. The Family Court Act of 1962 created Family Courts to provide a specialized, consolidated court system to address family matters. 19 This consolidated system ameliorated the problems associated with the former, fragmented system in which different courts adjudicated different family-related issues. 20 Today, however, Family Courts are in dire need of additional funding, space, and personnel. In her final State of the Judiciary speech, Judge Kaye stated: “I personally have never before seen such burdens placed on Family Court, emotional burdens and calendar burdens, typically necessitating long court days and long court delays—delays that in child time Expanding Access, at 20.

48 RCNY Appendix, Rule 8.

LIFT 2008 Program Slideshow (2008), http://www.liftonline.org/pdf/Annual.Report_FY08.pdf (last visited October 19, 2009) [hereinafter “Lift 2008 Program Slideshow”].

See State of New York 2007 Report, at 21. Of these cases, 239,592 were brought in New York City and 469,701 outside of New York City. Id. at 25.

Citizens Committee for Children of New York Inc., Crisis in New York’s Family Courts: More Family Court Judges Needed (2009), available at http://www.cccnewyork.org/publications/fctonepager2009.pdf (last visited October 19, 2009).

Id. There are continuing efforts to increase the number of Family Court Judges. On September 11, 2009, the New York State Senate passed a bill to create positions for 21 new Family Court Judges. The bill has not yet been addressed by the New York State Assembly.

See id.

Merril Sobie, The Family Court: A Short History (Mar. 2003), http://www.courts.state.ny.us/history/family_ct/History_Fam_Ct.htm (last visited October 19, 2009).

are an eternity. No fair to the litigants, no fair to the courts.” 21 Unrepresented litigants are especially vulnerable to such unfairness, and are most likely to suffer injustices as a result.

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