New York’s High Court Tried to Protect Parents’ Rights. Lower Courts are Ignoring It.

Many judges have ignored a 2016 mandate from New York’s top court that parents must be allowed to present evidence in their defense before they lose custody of their kids.

Sam Mellins   ·   August 24, 2022
Brooklyn Family Court | Ajay Suresh

Six years ago, New York’s top court ruled that judges could not take parents’ custody of their kids away without holding a hearing. But in the years since, some lower courts have ignored that ruling, restricting parents’ rights to see their kids without giving them the opportunity to present evidence in their own defense.

The Court of Appeals’ ruling, issued in June 2016, reversed a lower court decision in which a Westchester judge awarded John Rogers full custody of his two children against the wishes of their mother, Sylvia Lee. The top court unanimously ruled that the judge should have held a hearing to give Lee the chance to present her side of the story — and that judges in all child custody cases should also hold hearings before issuing a ruling.

Limiting custody rights without such a hearing creates “an unacceptably-high risk of yielding custody determinations that do not conform to the best interest of a child,” wrote Judge Michael Garcia, one of four judges who currently form a conservative majority bloc on the Court of Appeals. Garcia sent the case back to the lower court, and ordered them to conduct a hearing before making a final decision. 

The ruling left room for judges to not hold hearings in some custody cases, but still required them to “clearly articulate” the reasons for their decision and to outline the evidence that they relied on.

The decision was the top court’s attempt at “pulling the lower courts back when they violate people's rights,” said Chris Gottlieb, professor and co-director of the Family Defense Clinic at NYU Law School. “To restrict somebody to somebody's contact with their child is a very significant step. And it's sometimes merited and authorized, but there needs to be a basis for doing that,” Gottlieb said.

But many lower courts appear to simply be ignoring the ruling.

New York Focus found over twenty-five examples of cases from 2017 to 2022 where judges' rulings changing children’s custody status were overturned because the lower courts failed to hold a hearing as required by the Court of Appeals.

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

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

“Some people are willing to say, ‘My rights were violated, but I can't face another five years in court,’ and they throw in the towel,” said Harold Burke, a family court lawyer who represented Sylvia Lee at the Court of Appeals. 

This isn’t the first time that New York judges have resisted orders from higher courts to hold hearings. Last year, an appeals court ruled that when judges issue orders of protection that prevent defendants from entering their homes or seeing their children, they must subsequently hold hearings to determine whether those orders are truly necessary to protect people’s safety. Defense lawyers hoped that that ruling would prevent cases like that of Shamika Crawford, who was left homeless for months after an order of protection barred her from entering her own apartment.

But the ruling 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 deviating from proper judicial conduct.

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

In a 2018 case, Justice Esther Morgenstern suspended a father’s visitation rights without a hearing, and explicitly said that she was doing so as punishment for him screaming and using obscene language in the courthouse. The appeals court admonished Morgenstern for taking away the father’s access to the child in order to punish him, rather than promote the best interests of the child, which courts are legally required to do in custody disputes. The appeals court sent the case back to be reheard by a different judge.

In June of this year, Jane, who lives in the Rivertowns area of Westchester and requested that her real name be withheld since she is still involved in a sealed court proceeding, did not receive a hearing before a judge gave 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 lawyer reminded the judge that she was. Still, the judge declined to hold a hearing, saying that it was unnecessary because it would result in the same outcome. The judge then claimed that the court appearance they were in the middle of was the hearing, even though Jane and her lawyer had not presented any evidence.

“Suddenly without letting me enter any evidence onto the record, the judge said, ‘This was the hearing,’” and awarded the father partial custody, Jane told New York Focus.

“It happened in a matter of seconds,” she added. “I felt that my rights were taken away from me, that I had no voice in the legal system and wasn't being represented.”

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

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

Lucian Chalfen, a spokesperson for the state court system, said that “it is not at all clear that the reversal rate [on custody cases] is disproportionate” relative to other cases. Chalfen also said that judges have received training on how to implement the Court of Appeals' ruling, though he declined to provide details about what that training includes. 

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

Whatever form the training has taken, some family lawyers said it hasn’t made all judges aware of the change in law. Burke said that he has argued cases before multiple judges who were entirely unfamiliar with it.

“If that's representative of the bigger picture, that's a problem,” Burke said. “This is a Court of Appeals decision that applies to the whole state. It's not something obscure involving property rights up in Oneonta.”

Lower courts' reticence to follow the Court of Appeals’ ruling isn’t entirely surprising for family courts, which are isolated from the rest of the court system, one expert said.

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

Some judges may skip hearings in order to quickly move through their often overwhelming dockets. In New York City, there are thousands of filings per judge in family court each year. Many cases last just a few minutes, and don’t include witnesses or evidence, as judges try to get through as many as possible.

“It's appropriate for judges to look for ways to be efficient, but sometimes I think it crosses the line into corner cutting,” 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 reestablish meaningful relationships with her children, who had become alienated from her during the years-long legal process, Burke said.

“She got a new hearing, but by that point in time, the ship had sailed on the relationship with her kids,” Burke said. “What she said to me about it was ‘I’m pursuing this so maybe it doesn’t happen to anyone else.’ That was really the only consolation she could take from it.”

Sam Mellins is senior reporter at New York Focus, which he has been a part of since launch day. His reporting has also appeared in The San Francisco Chronicle, The Intercept, THE CITY, and The Nation. 
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