Three attorneys from Orrick Herrington & Sutcliffe LLP, Proskauer Rose LLP and Clifford Chance LLP were members of a New York City Bar Association and Funds for Modern Courts work group that recently released a report with recommendations for improving access to New York City family courts.

Orrick pro bono counsel Rene Kathawala and Proskauer partner Bill Silverman were co-chairs of the New York City Family Court COVID Work Group. They conducted dozens of interviews with key stakeholders — including judges, advocates and government officials within the family court system — and co-authored the report, while Clifford Chance partner Celeste Koeleveld provided feedback on drafts of the written report.

Kathawala, who has been doing pro bono legal work in New York City family court for more than 25 years, told Law360 in a recent interview that the problem with the family court system is that it doesn't efficiently help families. He said many people who go through the family court system don't want to return because the legal process is complicated and time-consuming.

"If you can't pay for basic essentials because you don't have child support coming in and it takes a year for your case to get resolved, that's not very helpful, and it makes you question why you should go back the next time when the same issue recurs," Kathawala said.

New York City family courts handle cases involving child custody and financial support, parental separation, guardianship, adoption, divorce, juvenile abuse and neglect, and orders of protection, according to the attorneys.

When a parent has to go to family court, they typically have to take a day off from work, wait hours for their case to be called, get 10 to 15 minutes before a judge who hasn't reviewed their case prior to it being called, and are scheduled to return to court in three months, Kathawala said.

If parents don't have an attorney, which oftentimes they don't because they can't afford one, their cases are likely to be delayed further, according to Silverman, who launched an attorney volunteer program in 2006 to provide litigants without legal representation in New York City family courts with free legal advice.

The pandemic substantially impacted the family court system by worsening existing problems like case backlogs, Silverman said.

During the pandemic, family court cases were further delayed because the courts distinguished between essential and nonessential cases and only heard essential cases that included matters like orders of protection and delinquency proceedings, according to the report.

Other cases like child custody and financial support, adoption, guardianship, visitation, and termination of parental rights were deemed nonessential and delayed for months to nearly a year, the report said.

"Even though the vast majority of child support cases were considered to be nonessential, the fact is that in reality there's nothing more essential than providing food and housing for your family," Silverman said.

Koeleveld, who was formerly an executive assistant corporation counsel at the New York City Law Department, which brings juvenile delinquency cases to family courts, noted that many people who end up in family court are in the midst of an emergency and don't have a year to wait for help.

"The whole purpose of the system is being undermined by the lack of resources [and] the lack of access, and this is affecting children," she said.

Work group co-Chair Kathawala said the New York City family court system has the power to enact all the work group's recommendations, and the changes would not be costly to implement in the courts.

"These are all recommendations that would substantially improve the experience for litigants in the family court and would have a tremendous positive impact in making sure the litigants have better access to a system that actually serves their families," he said.

The report's recommendations include building a user-friendly website for the New York City family court system, creating an electronic court filing system, and pulling judges and other resources from trial courts to address family court delays and backlogs.

According to Silverman, the attorneys started working on the report at the end of March 2021 and spent a substantial amount of time gathering information and conducting interviews. Kathawala estimated that he spent 15 to 20 hours each week working on the report, putting in nearly 200 hours, before moving the report through the New York City Bar's approval process.

Silverman said the most challenging part of the project was ensuring that the report's timeline of events accurately reflected what happened in real life.

"Because a lot of the report is based on people's observations, you have to stick with enough people so that you are secure in the conclusions that you're drawing," he said.

Silverman said he went into the project thinking the report would be a story about the pandemic and came out realizing that the narrative was really about the government's years of neglect of the family court system.

"The lesson, of course, is that we should never let institutions get to the point where they can't sustain a crisis, where they can't meet the needs of vulnerable people who have legal issues," he said.

--Editing by Janice Carter Brown.

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