Expand family court capacity

New York will begin resuming in-person criminal and civil trials this week. For the criminally accused, it couldn’t come soon enough, as their right to a fair and speedy trial by jury has been suspended for far too long.

But for those seeking justice in civil cases, and particularly in divorce, custody and family law matters, it is also time that the courtroom doors reopened for in-person adjudication. New York state courts have made tremendous efforts toward making a virtual trial experience as good as they can. Large expenditures in hardware, software and training the “live ware” have been made. But we need more, from appointing more judges to handle the growing caseload to increasing the availability of alternative dispute resolution programs, all the while retaining the positive features of virtual proceedings.

The COVID-19 pandemic has profoundly affected our core relationships, creating a perfect storm for families. Lockdowns and social distancing have resulted in vastly increased amounts of time together. All that togetherness exacerbates the problems in fraying or already-frayed relationships. Pre-existing physical and psychological health problems of spouses and of children have both been significantly aggravated, and new health issues have arisen. The rates of depression, stress, anxiety, suicidal ideation and suicide itself among all age groups have sharply increased over the past year, as has substance use and abuse. Extremely worrisome is that there has been a surge in domestic violence and child abuse. All of these problems are placed at the doorstep of a court system that was barely holding its own before last March.

In the first few months of the pandemic, divorces were already up 34%. While that surge has since levelled off, and while the divorce rate in the United States has hit a 50-year low, those of us in the matrimonial law industry expect that there will be an increase in filings as COVID-19 vaccines become more widely available, the unemployed become re-employed, and restrictions on movement loosen up. 

Between the dissolutions that are propelled by the pandemic and the backlog of divorce cases that would have occurred anyway, a tsunami is heading for the judicial system. Merely re-opening the courts will not be sufficient to address the onslaught of new matters, in addition to the 140,200 civil cases pending in New York City's general jurisdiction trial courts – up about 8% from last year according to the state court administration. 

Furthermore, until the pandemic has really subsided many aspects of these cases present very thorny problems making negotiations difficult. Many schools and childcare facilities have unpredictable hours if they aren’t closed and this makes the world of child custody more difficult to navigate. Of course, financial decisions have become all the more complex as people need to try and take into account the current and future economic uncertainties. 

Although the number is slightly fluid, there are only nine judges in Manhattan and Brooklyn Supreme Court dedicated to handling the matrimonial cases. Kings county: 

Manhattan: It's no surprise that, notwithstanding the efforts of those judges, it can take up to an astounding three years to be finalized. 

This is unfair and untenable to everyone involved: parties, court personnel, attorneys and, of course, children. Clearly much more needs to be done, including greatly expanding the number of judges who can handle matrimonial law cases, increasing the number of people trained in alternative dispute resolution methods such as mediation and neutral evaluation, which is a hybrid of mediation and arbitration. Courts should also use special referees, who are non-judges assigned features of a divorce case who hear and recommend decisions to the judges; discovery masters, which are persons appointed by a judge to sort out and expedite the exchange of information between litigants; and judicial hearing officers, which are people who have previously served as judges and who have the power to make certain decisions concerning the issues of the case.

At the same time, New York should maintain the good aspects of virtual proceedings. For example, why should a parent have to miss work, hire extra childcare, travel to court and pay a lawyer to tell a judge that the other side hasn’t produced the credit card records that have been requested? This can be done on a virtual platform in five minutes.

The phased reopening of the courts can’t be a step toward business as usual, because that business was already untenable.