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| Judge Judith Kaye |
Judith Kaye, the first woman named to New York State’s
highest court, the Court of Appeals, and the first to serve as its Chief Judge,
died today at age 77.
Though The New York
Times notes
many of her accomplishments, the paper neglects some of the most important. They concerned the state’s Family Courts. Here are some of them:
Protecting domestic
violence victims, and their children
It had been common practice in New York – and remains common
practice elsewhere – for child protective services agencies to take away
children from battered mothers, just because the mothers “allowed” the child to
“witness domestic violence.”
A federal
class-action lawsuit brought an end to the practice in New York. (NCCPR’s
Vice President, Carolyn Kubitschek, was co-counsel for the plaintiffs.) During the course of that suit expert after
expert testified that while witnessing domestic violence sometimes can, indeed,
be emotionally harmful to a child, taking that child from the victim of the violence is much, much
worse. One expert said that, for the
child, it is “tantamount to pouring salt into an open wound.”
The section of U.S. District Judge Jack Weinstein’s decision
summarizing this testimony remains one of the most popular
pages on NCCPR’s website.
After Weinstein ruled, the City appealed. At one point the federal appellate court
sought clarification of New York law from the state Court of Appeals. That led to
a sweeping, unanimous decision, written by Judge Kaye, making clear that
New York State law does not allow this barbaric practice. In effect, that extended the impact of the
lawsuit statewide (though, as always, it’s not clear if child protective
services agencies actually are following the law).
Giving children real
lawyers
Although juvenile court hearings are supposed to be all
about the children, often the children are effectively silenced. That’s because instead of a lawyer tasked
with advocating for what the child wants, children often get “law guardians”
who are free to substitute their own judgment for that of the child. And that’s often the easiest course of
action, particularly when it simply involves rubber-stamping the recommendation
of a child protective services agency. So if a child desperately wants to return to
her or his parents from foster care, but the law guardian disagrees, the child
is effectively silenced. (While less
common, a child who desperately wants to remain in foster care also may be
silenced, and that is equally wrong.)
Of course, the fact that a child wants a particular outcome
doesn’t mean he or she should get it. And some children are too young to
express a rational preference, or any preference at all. But deciding what’s
best is what judges are for. And they
can’t truly do justice unless everyone has an advocate making the best possible
case for his or her side.
The New
York State Bar Association promulgated guidelines calling for children’s
lawyers to follow the direction of their clients – the children
- except where the child was too young. But the guidelines were not binding. Judge Kaye made them binding.
Opening family courts
to press and public
One of the reasons juvenile courts can get away with
trampling on the rights of families, and attorneys can provide representation
that’s inadequate – or worse – is that, in much of the country, the hearings
are secret. Slowly that’s been changing,
and today, nearly half of America’s foster children live in states where these
hearings are open to the public and/or the press.
In New York, that was done by order of Judge Kaye. I believe the news stories exposing what went
on those courts after the hearings first were opened are part of the reason New
York City became a national leader in providing high quality defense counsel
for families caught up in the child welfare system through organizations like The
Bronx Defenders, Brooklyn Family Defense
Practice and the Center for Family
Representation.
And no one ever boiled down the rationale for opening these
courts better. Said Judge Kaye: “Sunshine
is good for children.”
Her own family has many reasons to be proud of the legacy of
Judge Judith Kaye. And a lot of children
and parents who may never have heard of her have reason to be grateful.
