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Pro Se Litigants with Disabilities in Family Court

A Proposal for Procedural and Substantive Legal Assistance

August 18, 2011

Author:  Linda Hassberg 1

Introduction

Low-income parents with mental disabilities who must litigate in New York State Family Court face enormous procedural and substantive legal obstacles.  In matters involving child support in particular, the majority appear without any legal assistance and have little chance of successfully resolving their disputes, to their own detriment as well as that of their families and the courts themselves.  The complexities of navigating the family court system are daunting for all pro se parties, but approach impossibility for individuals with mental disabilities. 

Child support modification litigation is often commenced because of a disabling condition that prevents a parent from working.  Parents must affirmatively bring their claims in Family Court in order to obtain a modification of an existing child support order.  Despite the fact that most litigants are unrepresented, Family Court adheres to strict procedural and evidentiary rules that frequently work to bar the admission of the readily available documentation such as letters and records from doctors.  Moreover, legal precedent mitigates against the recognition of Social Security determinations of disability as sufficient proof of inability to work.  The type of evidence that the court demands is difficult and too expensive for low income parents to obtain. As a result, disabled parents’ claims are often dismissed despite their valid factual bases.

This article defines some of the problems faced by disabled Family Court litigants and proposes avenues for amelioration. The Americans with Disability Act can be a vehicle for obtaining assistance with the cumbersome process of filing petitions and submitting evidence.  Recent amendments to the Family Court Act may ease the difficulty of substantive proof in disability-related cases.

Child Support Litigation 

In 2009, 742,365 new cases were filed in New York State Family Courts. 2  More than 80% of the parties to these actions were unrepresented. 3  Support matters accounted for approximately 40% of all cases. 4  As legal representation in support proceedings is only available in rare circumstances, the percentage of parents seeking modification of child support pro se is undoubtedly much higher than 80%.

The amount of child support that the non-custodial parent pays is determined by a court at the time of separation and divorce or when paternity is established.  The Child Support Standards Act sets forth payment schedules based on the combined income of both parents, the number of children, and several other factors. 5  An order of support usually remains in force until the youngest child attains majority, but either parent may petition to modify the support amount predicated on a change of circumstance of the parent or child. 6  Custodial parents can also file enforcement petitions when the non-custodial parents fail to comply with support orders. 

Representation

The local Child Support Enforcement Bureau (CSEB) assists custodial parents in filing support violation petitions, but its court appearances are usually limited to representation of the social services district when there has been an assignment of right. 7  Noncustodial parent respondents can only obtain court-appointed counsel if they face charges of willful violation which could result in incarceration.  Low income parents seeking modification of support orders must do so on their own.

Procedural Barriers

Although the courts do not maintain any statistics on the percentage of petitions that are dismissed, it is likely that the majority of parents with disabilities seeking modifications fail to obtain relief due to the difficult process of filing, responding to and prosecuting support petitions.   In Suffolk County, for example, petitions are routinely dismissed without a hearing if a support magistrate decides that the petitioner failed to state a prima facie case and include supporting documentation. 8  The Family Court in Suffolk has a probation office that assists pro se litigants in filling out and filing petitions, but cannot give legal advice.  Moreover, there is no assistance available once the petition has been filed.

Substantive Law Barriers

The petitioner who succeeds in providing facial  evidence sufficient to appear before a magistrate then bears a heavy burden of proof that a change in circumstance necessitates a modification of support.  The court’s formal evidentiary standards act as a bar to the admission of almost all documentary evidence that is easily gathered by a pro se litigant. For example, the submission of a letter from a treating psychiatrist or other medical expert that the petitioner’s disability prevents him or her from working at former capacity will not be accepted because the CPLR disallows most written forms of medical evidence other than certified hospital records. 9 Even with a pro bono or legal aid attorney, the cost of obtaining the live testimony of a doctor makes the ability to comply with the requirement of testimonial evidence to lay a foundation for medical evidence nearly impossible. A litigant with a mental disability was granted a downward modification in Nassau County only because his legal services attorney was able to procure a grant of four thousand dollars from Catholic Charities to provide testimony from his treating psychiatrist, an evidentiary approach clearly not attainable for most low-income, pro se parents. 10

A second major impediment faced by disabled parents seeking downward modification is that the family courts refuse to recognize disability determinations made by the Social Security Administration as adequate proof of inability to work.  Under the Social Security Act, claimants will not be found eligible for disability-based benefits unless they are unable to engage in substantial gainful activity for at least twelve months. 11  The Social Security Administration relies on medically trained staff to review records and makes use of both medical and vocational experts to determine that a claimant has a long term disability that prevents him or her from engaging in substantial gainful activity. Nonetheless, New York courts often deny modifications to mentally ill parents who had been found totally disabled by the Social Security Administration without any explanation other than that the court is not required to accept these findings. 12

Accommodations under the ADA

The Supreme Court in Tennessee v. Lane, 13 (2004) made clear that Title II of the Americans with Disabilities Act (ADA) applies to state courts.  The ADA mandates the provision of reasonable accommodations to persons with disabilities to prevent discrimination.  Reasonable accommodations are defined as “reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.” 14  See also Henrietta D. v. Bloomberg, 331 F.3d 261, 282  (2d Cir. 2003)(“A ‘reasonable accommodation’ is one that gives the otherwise qualified plaintiff with disabilities ‘meaningful access’ to the program or services sought.” citing Alexander v. Choate, 469 U.S. 287, 301, 105 S.Ct. 712 (1985)). The Second Circuit recently affirmed that an entity covered by the ADA must incur reasonable costs and take modest, affirmative steps to accommodate the disabled “as long as the accommodations sought do not pose an undue hardship or a substantial burden.” 15

Most courthouses in New York now offer accommodations such as wheelchair ramps and braille signage, 16  but it is difficult to determine whether people with psychiatric and other mental disabilities can effectively request and obtain accommodations that would enable them meaningful access to the court system. Moreover, even if a request for court-appointed attorney representation, for example, was construed as an accommodation request pursuant to the ADA, the court could lawfully reject the demand.  Representation by an attorney certainly provides meaningful access, but could reasonably be refused as an “undue hardship or substantial burden” for a court system handling a huge volume of pro se cases and already suffering significant budgetary cutbacks.

There are several other types of assistance that could meet the accommodation requirements of the ADA. On-site assistance with petitions, supporting documentation, motions, and compliance with court orders would help all pro se litigants and may make the difference between a dismissal and a successful modification for many parties contending with mental disabilities. One excellent example of on-site assistance is Legal Information for Families Together, or LIFT.  LIFT operates court-based centers in four boroughs in New York City, as well as telephone and email hotlines.  LIFT offers legal resource guides and has staff on site to answer questions, to provide assistance in completing court documents and understanding court orders, and to give guidance on court procedures.  For cases involving child support, custody, or visitation, LIFT also offers free consultations and strategy sessions. 17  Another model of on-site assistance is a pro se office or clerk such as those situated in most federal courts.

Additionally, petition forms, checklists, and written guides could aid people with mental disabilities to understand and keep track of the documents they need and the statements that must be included in support petitions to set forth a prima facie case.  For example, petition forms could include statements such as:

  1. I have a disability.  My disability is _______.
  2. My disability prevents me from working because _____________.
  3. I have attached [a letter from my treating physician] or [a disability determination by the Social Security Administration] in support of my claim.


A checklist could be offered to all litigants listing the types of documents they might need and how to obtain them along with a guide that explains court procedures.  Enhanced forms and written guidance coupled with assistance in obtaining proper documentation, or acceptance of a broader range of acceptable documentary evidence, could offer meaningful access to most litigants.

Family Court Act Amendments of 2010

Parents seeking modification of support orders based on a change of circumstance that limit  their earning capacity due to disability have substantive legal hurdles to overcome in addition to procedural problems.  The ADA clearly requires modification or enhancement of procedural aids to afford access, but the right to reasonable accommodation becomes much murkier concerning judicial determinations, where any modification would likely be regarded as a substantial alteration to the benefit itself. See, e.g. Harris v. Mills 572 F.3d 66, 74 (2d Cir. 2009) (Title II of the ADA does not require any relaxation or diminishment of otherwise applicable standards); Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000) (The ADA “does not require that substantively different services be provided to the disabled, no matter how great their need for the services may be. They require only that covered entities make “reasonable accommodations” to enable “meaningful access” to such services as may be provided, whether such services are adequate or not.”)

Recent amendments to the New York Family Court Act may offer a more fruitful means of simplifying the burden of proving that a disability warrants a modification of support.  In 2010, the New York State Legislature passed the Low Income Support Obligation and Performance Improvement Act.  The legislation amended Section 451 of the Family Court Act (FCA) to expand the bases upon which an order of child support may be modified.  It also added a new Section 437-a, which prohibits family court judges from assigning unemployed and underemployed respondents to work programs in proceedings to establish child support if the respondent  qualifies for Social Security Disability (SSD) or Supplemental Security Income (SSI).  These two changes to the Act may help to lower the often insurmountable barriers that disabled parents now face in proving their entitlement to modification of support based on inability to work. 

Section 451- Expanded Bases for Modification

FCA, § 451 provides family court with continuing jurisdiction of support matters and sets forth the bases upon which the court may modify, set aside or vacate an order. The legislature amended this section by adding a second paragraph that states:

2.  (a)  The court may modify an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances. Incarceration shall not be a bar to finding a substantial change in circumstances provided such incarceration is not the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment.

(b)  In addition, unless the parties have specifically opted out of the following provisions in a  validly  executed  agreement  or  stipulation entered into between the parties, the court may modify an order of child support where:
       (i) three years have passed since the order was entered, last modified
           or adjusted; or
      (ii) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified, or adjusted. A  reduction  in  income  shall  not  be  considered         as a  ground  for  modification unless it was involuntary and the party has  made  diligent attempts  to  secure  employment commensurate with his or her education, ability, and experience.

The new amendment, which became effective on October 13, 2010, provides three separate bases for seeking modification of support:  (1) a substantial change in circumstance, of which incarceration is no longer a bar (Paragraph 2(a)); (2) the passage of three years since the most recent order or modification (2(b)(i);  or an involuntary change in gross income of 15% percent or more (2(b)(ii). 18  To set forth a prima facie case after the effective date of the amendment, a petitioner must still provide an “affidavit and other evidentiary material sufficient to establish a prima facie case for the relief requested (§ 451.1), but the new language at § 451.2(b)(i) requires only that the petitioner attach the most recent support order and allege that three years have passed and state the reason why the current order is no longer just and appropriate.  Alternatively, the petitioner can allege that s/he or his/her spouse have experienced a fifteen percent change in income and attach evidence of such change and the reason for it. §451.2(b)(ii). The disabled petitioner would also need to submit evidence that the reduction in income resulted from the onset or worsening of an involuntary disabling condition to state a prima facie case.

Treatment of Social Security Determinations of Disability

ADA accommodations in combination with the added bases for modification under Section 451 should greatly increase the percentage of pro se child support litigants who have their issues heard by support magistrates.  However, neither improvement could adequately cope with the court’s current unwillingness to accept written treating physician evaluations or even Social Security determinations as presumptive evidence of inability to work. Without a change in this approach to evidence, the barriers to proving disability will remain unfairly high.

The amended Family Court Act includes a new section that may now enable individuals with disabilities to submit Social Security Disability determinations as sufficient proof, even though the new language does not directly refer to proof of change in circumstance.  New Section 437-a, states:

Referral to work programs. In any proceeding to establish an order of support, if the respondent is unemployed, the court may require the respondent to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment provided such programs are available. The court shall not require the respondent to seek employment or to participate in job training, employment counseling, or other programs designed to lead to employment under this section if the respondent is in receipt of supplemental security income or social security disability benefits.

This new section is an acknowledgement by the state legislature that a disability determination by Social Security is evidence of an inability to work sufficient to exempt the individual from a work requirement during a proceeding to establish support.  It would be inconsistent to set forth in one section of the Act that a respondent to a support petition is deemed unable to work for purposes of establishing an order by virtue of being found disabled by Social Security, but able to work for purposes of a support modification based on identical evidence. 19  It is unlikely that the Legislature connected the two issues in passing this amendment, and the interpretation set forth here has not yet been tested.

Need For Further Legislation

Beyond the approaches outlined in this article, the Family Court Act may need further amendment in order to provide meaningful access to parents with disabilities in child support matters.  A provision that creates a rebuttal presumption of inability to work when a party submits a determination of disability from the Social Security Administration would be enormously helpful in aiding a litigant to meet his or her burden of proof without denying the other party the opportunity to challenge the determination if there is contradictory evidence of earning capacity or income.  An amendment that eases the evidentiary standards to permit submission of letters and medical records from treating physicians in lieu of testimony would allow a disabled litigant to offer evidence more readily available at reasonable expense. It is beyond the scope of this article to propose such new legislation, but this strategy should be kept in mind as an option in addressing the issues.
 
Conclusion

Pro se child support litigants with mental disabilities currently face nearly insurmountable barriers when petitioning family courts in New York State for modification despite legitimate bases for such relief. Without the capacity to earn sufficient income or to obtain modification of support obligations, mentally disabled parents are helpless to prevent arrears from mounting and suffer punitive consequences that do nothing to assist their children.   

The ADA should be explored as a vehicle for providing assistance with procedural difficulties in setting forth a prima facie case and submitting acceptable evidence of disability.  People with mental disabilities are entitled to reasonable accommodations to access the court process, but advocates need to think creatively about accommodations that courts can effectively provide.  The newly amended Family Court Act may offer some avenues for easing the burden of proof, but further amendment to the Act may be necessary to achieve real change. 

The suggestions in this article are largely untested.  Attorneys and advocates who aid disabled parents in their dealings with family court on support issues are urged to respond to this article with your experiences and suggestions.  lhassberg@empirejustice.org

Endnotes

1   The author wishes to thank Susan Antos, Jane Reinhardt, Sandra Graffeo, Lewis Silverman, Cary LaChene, and Jeff Reed for their useful comments in the development of this article.
2   2009 Annual Report of the Chief Administrative Judge.
3   White Paper on Improving Help Centers in New York State Family Courts, Fund for Modern Courts Family Court Task Force, November 2009
4   Id.
5   Fam.Ct.Act § 413 (2011)
6   Id.
7   NY Social Services Law, Title 6A §111H.  The New York State Office of Temporary and Disability Assistance oversees the operations of both the state and local CSEBs.  In 2010, it issued an Administrative Directive stating that: Under federal and State law and regulation, child support enforcement services must be made available by the child support enforcement program operated in compliance with Title IV-D of the Federal Social Security Act (Title IV-D) equally to both public assistance recipients and non-public assistance recipients. If the children are not in receipt of public assistance, either the custodial or noncustodial parent may apply for such services. . . . . Legal services to . . . .establish, modify or enforce child support must be provided to all CSS (Child Support Subsidy) recipients who request such services, and must be provided in the same manner for both local and interstate cases. Either the custodial or the noncustodial parent may apply for child support services, including legal services. Local district child support programs must ensure that there are sufficient numbers of attorneys available to provide legal services. 
10-ADM-02 at pages 2-3, citing 18 NYCRR 347.17 and 45 CFR 303.20[f] (emphasis added).  Despite this ADM, there is no indication that CSEBs provide legal services to any non-custodial parents in the form of appearances before support magistrates or assistance in the preparation of petitions and submission of documents.
8   See, e.g. Conway v. Conway, 79 A.D.3d 965, 912 N.Y.S.2d 700, 701-702 (2 Dept.2010) (“The defendant failed to make a prima facie showing that he was diligently seeking employment. Furthermore, although he asserted that he was awaiting a decision on an application for Social Security disability benefits, he failed to submit any evidence demonstrating that he was currently suffering from a disability, or that his inability to obtain employment was due to a disability. Accordingly, the Supreme Court providently exercised its discretion in denying the defendant's motion for a downward modification of his child support obligation without a hearing.”) (internal cites omitted)
9   See, e.g. Bronstein-Becher v. Becher, 25 A.D.3d 796, 809 N.Y.S.2d 140 (2d Dept. 2006)(“At the hearing, the father's attorney sought to introduce into evidence medical reports from the father's psychiatrist, Dr. Edward M. Stephens. While the reports were certified, the hearing court found them to be inadmissible, stating they were ‘not a medical record [and] not a hospital record. It's a letter. Therefore, it's hearsay.’ The hearing court was correct in refusing to accept Dr. Stephen's medical reports into evidence. [A] physician's office records, supported by the statutory foundations set forth in CPLR 4518 (a), are admissible in evidence as business records. . . .  However, medical reports, as opposed to day-to-day business entries of a treating physician, are not admissible as business records where they contain the doctor's opinion or expert proof.   . . . .  Here, Dr. Stephens' two ‘narrative reports’ were simply letters summarizing his diagnosis, treatment, and opinion concerning the father's ability to return to work. No proper foundation was provided demonstrating that they were in fact business records. . . . Their certification did not cure this defect as only hospital records, and not physician office records, are admissible by certification (see CPLR 4518 [c]; 2306 [a] . . . .  Since the father failed to submit evidence sufficient to show his inability to pay, he failed to rebut the mother's prima facie case.”)
10  Interview with Jane Reinhardt, Esq., April 5, 2011.  
11  42 U.S.C.A. § 423(d)(1)(A)
12  See, e.g. Aranova v. Aranova, 77 A.D.3d 740, 909 N.Y.S.2d 125 (2 Dept. 2010) (“The evidence that [the petitioner] was receiving Social Security disability benefits did not, by itself, preclude the Family Court from finding that he was capable of working.”); Cashin v. Cashin, 79 A.D.3d 963, 913 N.Y.S.2d 321 (2 Dept. 2010); Mandelowitz v. Bodden, 68 A.D.3d 871, 890 N.Y.S.2d 634 (2 Dept. 2009).  The difficulties faced by parents attempting to prove that their disability warrants modification may vary significantly by county, among individual support magistrates, and whether the party seeking relief is a custodial or non-custodial parent.  Moreover, support magistrates are given broad discretion to determine sufficiency of evidence for modifications and do not publish their holdings.  Therefore, the appellate division rulings may not accurately reflect the typical treatment of disability-based cases through the state.
13  541 U.S. 509, 124 S.Ct. 1978 (2004)
14  42 U.S.C.A. § 12131
15  Quad Enterprises Co., LLC v. Town of Southold, 369 Fed.Appx. 202,  (2d Cir. 2010) , quoting Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 578 (2d Cir.2003).
16  The Office of Court Administration published a guide on disability and access entitled:  “Justice Works:  A Public Guide to Ensuring Access and Equality in New York State Courts,” www.nycourts.gov/litigants/JusticeWorks07.pdf  Page 9 of the guide lists examples of accommodations as: access ramps, access for service animals, sign language interpreter, escorts, audiotapes, information in Braille, and assistive listening devices. 
17  See LIFT’s website for more complete information at www.liftonline.org.
18  Form 4-11b – Affidavit in Support of Modification of Support, available on the Office of Court Administration website, accurately permits petitioners to check a box next to one of these three options. www.nycourts.gov/forms/familycourt
19  Interestingly, local social services districts, which prosecute many of the child support matters through their Child Support Enforcement Bureaus and often aggressively fight attempts by non-custodial parents to modify the level of support, are bound by a policy directive that reaches farther than the new provision in the Family Court Act.  Administrative Directive 06-ADM-06 (2006) prohibits districts from requiring applicants or recipients of temporary assistance and food stamps to participate in employment activities if the district believes that the applicant might be eligible for disability benefits. The acknowledgement in the policy directive that someone who might qualify for Social Security disability benefits should be presumed as unable to work and therefore exempt from the employment obligation, seems to contradict the position that the CSEBs usually maintain in family court that a Social Security determination of disability does not suffice to show that inability to work for support purposes.

 





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