Established in September 1962, the New York State Family Court is celebrating its silver anniversary. The court’s direct predecessor was the Children’s Courts, founded in 1922. In constructing a comprehensive Family Court the forerunner’s jurisdiction was expanded by adding child custody, domestic violence, paternity, adoption, and concurrent with the Supreme Court, post-divorce modification and enforcement actions.1

The 50th anniversary represents an opportunity to sketch both the court’s history and its possible future. This article will outline the pre-Family Court history, briefly describe the post-1962 developments, and conclude by suggesting initiatives to further the court’s ability to adjudicate contemporary family issues.

The court’s roots run deep, reaching to the early 19th century. The initial measure separating children’s issues from traditional common law rules was the 1824 legislative incorporation of a House of Refuge for Children to receive, and hopefully rehabilitate, “all such children [under sixteen years of age] as shall be convicted of criminal offenses, in any city or county of this state, and as may in the judgment of the court, before whom any such offender shall be tried, be deemed proper objects.”2 Partly modeled upon the then new adult penitentiary system, children, unlike adults, received indeterminate sentences, which could remain in effect until age 21. The idea was to segregate errant children where they could be educated, rehabilitated and, upon rehabilitation, be released to lead productive adult lives. In 1851 a Juvenile Asylum was legislatively incorporated to house impoverished or neglected young children,3 and in 1853 the Children’s Aid society was founded to “rescue” immigrant children from the streets and poorhouses through placement in foster homes or farm apprenticeships.

The post-Civil War era further awakened a perceived need to protect children who were maltreated, or who had lapsed into wayward behavior. The post-war social repercussions, including rapid industrialization and massive immigration, spawned a national “child savers” movement which lobbied successfully for extensive children’s legislation. In 1865, the New York legislature enacted the “Disorderly Child” Act, a statute roughly equivalent to the present status offense or PINS statute.4 Twelve years later the legislature passed an “Act for Protecting Children,” a statute that may be fairly characterized as the state’s first child neglect law;5 under its provisions children could be placed in public or private childcare agencies upon a finding of parental malfeasance. The initial adoption laws and compulsory education laws also date from that era. Administered by the criminal courts, the piecemeal enactment of “child saving” legislation was refined and codified as part of the 1881 Penal Code.

By the late 19th century the major causes of action involving children had been enacted, and were enforced by public or private agencies, including the police and the societies for the protection of cruelty to children. Simultaneously, the Legislature incorporated and funded a plethora of childcare agencies to care for needy and maltreated children. Completing the evolutionary decriminalization of children’s activities, a 1909 Act coined the term “juvenile delinquency.”6 Thereafter, and until the enactment of the 1978 Juvenile Offender Act, any act short of murder committed by a youngster under the age of 16 could not be deemed criminal.

The important contemporary proceedings heard before the Family Court—child neglect or abuse, juvenile delinquency, status offenses, and adoption—were thus developed and applied in postbellum America. However, jurisdiction had been lodged in the criminal courts (a not illogical choice given the absence of specialized family tribunals). Given an increasing children’s caseload, the growth of the social sciences, the development of childcare agencies, and the inappropriateness of mixing children’s and criminal proceedings, the progression to a specialized court was probably inevitable. In 1901, the year the first juvenile court in America was established in Chicago, the New York State Legislature segregated juvenile cases by creating specialized children’s parts within New York City.7 Within a decade, the children’s court parts were operating in most of the state’s urban areas. Finally, joining the by then national movement, New York established separate Children’s Courts in 1922.8 Children’s issues, involving specialized social, educational and mental health expertise, were divorced from the criminal court milieu.

Separated from the mainstream of criminal and civil jurisdiction, the Children’s Courts developed unique characteristics, including confidentiality, privacy of proceedings, and the disuse, if not abhorrence, of procedural due process standards.9 The courts even substituted their own nomenclature for traditional legal terms; for example, the substitution of “fact finding” hearing for trial and “disposition” for sentence dates from the 1922 establishment of the Children’s Courts.

By 1960, the courts’ limitations and deficiencies had been well documented.10 Split jurisdiction, the absence of legal representation, the lack of jurisdiction to determine child custody, divorce, or domestic violence, and procedural anarchy were among the criticisms which led to the development of a Family Court concept. Of equal significance, in 1961, the state decided to reorganize the entire court structure, the first major judicial restructuring in almost a century. The reformers finally achieved the establishment of a Family Court, with the mandates outlined at the beginning of this article.

The Family Court Act incorporated several landmark provisions (in addition to the grant of more extensive jurisdiction). For the first time, children were afforded assigned counsel,11 a measure which enhanced procedural and substantive safeguards, and, indirectly, spawned litigation which expanded children’s rights, such as the right (and the empowerment) to appeal adverse decisions, and the right to obtain and present evidence addressing the child’s interest. The act also incorporated expanded child protective provisions affecting children and their parents (see Article Three of the 1962 Act, recodified as Article Ten) and incorporated several procedural due process elements.

In the ensuring 50 years the Family Court has changed in several respects, although the basic structure remains. Substantive statutory amendments include the expansion of termination of parental rights provisions (virtually unknown in 1962), the enactment of the Child Support Standards Act,12 which enhanced the economic responsibility of parents, and through several sequential amendments, domestic violence authority has been enhanced. More recently, the 2005 permanency act has greatly benefited children who have been neglected or abused. The court’s caseload has also grown exponentially, a phenomenon driven by many factors, including the enforcement of individual familial rights (of children, of parents, and of extended family members), the unfortunate increase in family dysfunction, and the expansion of procedural safeguards. Of perhaps paramount importance, the court has slowly shed the perception of “judicial stepchild,” and is now viewed as a coequal branch of the unified court system.

Viewed in perspective, as an institution which has evolved progressively over the course of almost two centuries, Family Court has much to be proud of. At the same time the court remains a work in progress, perhaps a permanent attribute of a tribunal devoted to the family. One yet unmet legislative need is raising the age of juvenile delinquency—New York is one of only two states which have tenaciously adhered to the nineteenth century jurisdictional limitation of age 16. It is also time to legislatively address the expectations and needs of non-traditional parents in the age of reproductive miracles, same sex relationships, and kinship care (evolving case law has left the existing Family Court Act provisions hopelessly outdated), and to rationalize the expanding role of quasi-judicial adjudicating officials, including support magistrates, referees and judicial hearing officers (a large majority of cases in New York City and a significant minority of cases outside the city never appear before a judge). The resources of the court, judicial and non-judicial, need significant augmentation. Last, the founder’s recommendation that matrimonial jurisdiction be vested in Family Court, thus abrogating the injustices and ineffectiveness of split jurisdiction, has never been realized and will probably be achieved only through merger of the Family Court and the Supreme Court. The culmination of the court’s lengthy progressive history may be court consolidation and, ironically, the abolition of the independent Family Court we today herald.

Merrill Sobie is a professor of Pace Law School. He is the author of ‘The History of New York’s Children’s Laws,’ which has been republished with a new introduction by the New York State Bar Association.

Endnotes:

1. See L. 1962, c. 686; although opposed by the Family Court proponents, Supreme Court retained exclusive divorce and annulment jurisdiction, and concurrent post-divorce modification, and enforcement jurisdiction.

2. L. 1824, c. 126 as amended by L. 1826, c.24.

3. L. 1851, c. 332; the Juvenile Asylum, now known as Children’s Village and located in Dobbs Ferry, still exists and still fulfills the basic 1951 mandate.

4. L. 1865, c. 172.

5. L. 1877, c. 428.

6. L. 1909, c. 478.

7 L. 1901, c. 466 the children’s parts were initially limited to Manhattan and the Bronx.

8. L. 1922, c. 547; due perhaps to the already functioning children’s parts in New York City, the then new court was initially limited to counties outside the city, but was extended statewide in 1924.

9. See, e.g., People v. Lewis, 260 N.Y. 171 (1932) where the Court of Appeals upheld the lack of the process, implicitly overruling earlier decisions, including People v. Fitzgerald, 244 N.Y. 307 (1927).

10. See, e.g., Gellhorn, Children and Families in the Courts of New York City, Dodd Mead 1954.

11. See, F.C.A. §§241-249.

12. See, e.g., F.C.A. §413.