The New York High Court tried to protect the rights of parents. The lower courts ignore it.

Six years ago, New York’s highest court ruled that judges cannot take away custody of their children from parents without holding a hearing. But in the years since, some lower courts have ignored that ruling, restricting parents’ right to see their children without giving them the opportunity to present evidence in their own defence.

Court of Appeal’ decision, handed down in June 2016, overturned a lower court ruling in which a Westchester judge had granted John Rogers full custody of his two children against the wishes of their mother, Sylvia Lee. The higher court unanimously ruled that the judge should have held a hearing to give Lee the chance to present his side of the story.

Limit custody rights without such a hearing creates “an unacceptably high risk of making custody decisions that are not in the best interests of a child,” wrote Judge Michael Garcia, one of four judges who currently form a conservative majority bloc on the Court of Appeal. Garcia sent the case back to the lower court and ordered them to hold a hearing before making a final decision.

The decision gave judges the option of not holding hearings in certain custody cases, but still required them to “clearly articulate” the reasons for their decision and outline the evidence they relied on.

The ruling was the higher court’s attempt to “roll back lower courts when they violate people’s rights,” said Chris Gottlieb, professor and co-director of the Family Defense Clinic at NYU Law School. “Limiting someone’s contact with someone’s child is a very important step. And sometimes it’s deserved and allowed, but it takes a foundation to do it,” Gottlieb said.

But many lower courts appear to simply ignore the ruling.

New York Focus found more than twenty-five examples of cases from 2017 to 2022 where judges’ decisions changing child custody status were overturned because lower courts failed to hold a hearing as required by the law. Court of Appeal.

These cases are likely representative of many other examples that never made it past the original judge’s decision, experts said.

“Most things don’t get appealed,” Gottlieb said. “It’s almost always the case that what we see at the appellate court level is just the tip of the iceberg.”

“Some people are ready to say, ‘My rights have been violated, but I can’t face five more years in court,’ and they throw in the towel,” said Harold Burke, a family court attorney. who represented Sylvia Lee in the Court of Justice. Calls.

This is not the first time New York judges have resisted orders from higher courts to hold hearings. Last year, an appeal court ruled that when judges issue protective orders that prevent defendants from entering their homes or seeing their children, they must then hold hearings to determine whether those orders are really necessary to protect people’s safety. Defense attorneys hoped the ruling would prevent cases like the Shamika Crawfordwho was left homeless for months after a protective order barred her from entering her own apartment.

But the decision was quickly neutralized by the government agency that runs the courts, which issued a memo discouraging judges from holding hearings involving witnesses or testimony, New York Focus reported last year.

In some of the overturned child custody cases, appeals courts criticized the original judges for departing from proper judicial conduct.

In a case 2017, the appeals court found that in addition to failing to hold the required hearing, lower court judge Joan Posner had “acted as an advocate for the mother” rather than remaining impartial. The court overturned Posner’s decision and ordered that the case be reconsidered by another judge.

In a case 2018, Judge Esther Morgenstern suspended a father’s visitation rights without a hearing and explicitly said she was doing so to punish him for shouting and using obscene language in the courthouse. The appeals court reprimanded Morgenstern for depriving the father of access to the child in order to punish him, rather than promote the best interests of the child, which the courts are legally required to do in custody disputes. The appeals court sent the case back for rehearing by another judge.

In June this year, Jane, who lives in the Rivertowns area of ​​Westchester and asked that her real name be withheld as she is still involved in sealed legal proceedings, was not heard from until a judge grants her ex-partner partial custody. of one of their children.

Jane didn’t know she was entitled to a hearing before her child’s custody status was changed, she told New York Focus, but her ex-partner’s attorney reminded the judge that she was. Yet the judge refused to hold a hearing, saying it was unnecessary as it would lead to the same result. The judge then claimed that the court appearance they were in was the hearing, even though Jane and her lawyer had presented no evidence.

“Suddenly, without letting me enter any evidence in the case, the judge said, ‘That was the hearing,'” and awarded the father partial custody, Jane told New York Focus.

“It happened in seconds,” she added. “I felt my rights were taken away from me, that I had no voice in the justice system and that I was not represented.”

Jane wants to appeal her case, but isn’t sure she’ll be able to, she said. Her lawyer has refused to continue representing her and she does not have the money to hire another lawyer or the legal knowledge to handle the appeal herself.

The cases that have been overturned are particularly concentrated in Westchester County, where the Sylvia Lee case that led to the Court of Appeals decision originated, as well as in New York’s outer boroughs and counties. surrounding.

Lucian Chalfen, spokesman for the state justice system, said that “it is not at all clear that the rate of inversion [on custody cases] is disproportionate” compared to other cases. Chalfen also said the judges received training on how to implement the Court of Appeal’s decision, although he declined to provide details on what that training contained.

“Judges must still exercise discretion and assess each individual case,” Chalfen said, noting that the Court of Appeals did not require lower courts to hold a hearing in every case. “Shades of gray remain.”

Whatever form the training took, some family attorneys said it did not educate all judges about the change in law. Burke said he has argued cases before several judges who were completely unfamiliar with it.

“If that’s representative of the bigger picture, that’s a problem,” Burke said. “This is a statewide decision of the Court of Appeals. This is not something obscure involving property rights in Oneonta.

The lower courts’ reluctance to follow the Court of Appeal’s decision is not entirely surprising for family courts, which are isolated from the rest of the justice system, an expert said.

“They’re so used to having their own little fiefdom that they probably don’t know about the decision or they’re thinking, ‘Oh Court of Appeals, they don’t know what’s going on here,'” a said Cynthia Godsoe, a Brooklyn Law School professor and family law expert.

Some judges may skip hearings in order to quickly go through their often overwhelming cases. In New York there is thousands of filings per judge in family court each year. Many cases only last a few minutes and do not include witnesses or evidence, as judges try to review as much as possible.

“It’s appropriate for judges to look for ways to be efficient, but sometimes I think it’s over the line,” Gottleib said.

Sylvia Lee died in March 2021 at the age of 51. Despite the Court of Appeals ruling in her favor, she was unable to re-establish meaningful relationships with her children, who had grown estranged from her during years of legal proceedings, Burke said.

“She got a new audience, but by then the ship had sailed on the relationship with her kids,” Burke said. “What she told me about it was ‘I’m chasing this, so maybe it won’t happen to anyone else.’ It was really the only consolation she could draw from it.

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