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Empire Justice Testimony on Improving Access to Family Court for Kinship Caregivers & Individuals with Mental Disabilities

New York State Bar Association Task Force on the Family Court

Improving Family Court Access for Informal Kinship Caregivers and Individuals with Mental Disabilities

December 1, 2011

Albany, New York


Prepared by:

 Susan C. Antos, Senior Attorney, Empire Justice Center
Linda Hassberg, Senior Attorney, Empire Justice Center
Gerard Wallace, New York State Kinship Navigator


Good morning.  My name is Susan Antos and I am a Senior Staff Attorney with the Empire Justice Center.  We appreciate the invitation to come before you today to discuss ways to improve meaningful access to Family Court for relative caregivers and individuals with mental disabilities.

The Empire Justice Center is a support center for legal services programs and the clients they serve.  We provide research and training, act as an informational clearinghouse, and provide litigation backup to local programs.  We also undertake impact litigation and engage in legislative and administrative advocacy.  We currently have staff attorneys specializing in public benefits (cash assistance, child care, food stamps and child support issues), health and Medicaid, Supplemental Security Income (SSI) and Social Security Disability (SSD) benefits, public and subsidized housing, legal issues affecting low income immigrants, consumer law and domestic violence.

Our testimony today will focus on the legal needs of two groups of individuals and ways to improve their meaningful access to family court: informal kinship caregivers and individuals with mental and psychological disabilities. We will address the needs of pro se litigants, the utilization of pro bono attorneys, law students and other volunteers in family court, and will include two legislative recommendations.

Legal Assistance to Informal Kinship Caregivers

Kinship care, sometimes called kincare, refers to the estimated 250,000 plus New York children who are being raised by grandparents and other relatives.  Fewer than 5% of these children are in court ordered foster care placements with relatives, commonly called kinship foster care.  Virtually all of the other 95% are living with relatives in informal arrangements, outside of the foster care system, and for similar reasons as children in foster care - because their parents abused, neglected or abandoned them, or their parents are alcohol and/or substance abusers, are deceased, mentally ill or unable or unwilling to parent. 

The 2009 American Community Survey tracks grandparents only, not aunts, uncles and other relative caregivers.  It shows 141,157 New York grandparents as primary caregivers: 21.7% had income below the poverty level, and 54,305 were over sixty years of age.  Of the 141,157, 46% are white, 29.4% African-American, and 27.7% Hispanic.  Regarding children, 48.9% were less than six years of age, 29.3% from six to eleven years, and 21.85% were from twelve to seventeen years old.  An estimated 30% to 35% of kinship care is provided by non-grandparent relatives and even some family friends.

The informal kinship system operates as a natural complement to the formal foster care system.  Yet, it does not receive nearly the same level of support given to children in the “formal” system, nor do the families have access to similar services and financial resources.  Even with New York’s enactment of a subsidized relative guardianship program (KinGap), those caregivers who leave foster care and become guardians do not have a right to ongoing legal assistance in the event of subsequent legal proceedings involving the care and custody of the child.

Laws at both the federal and New York State levels mandate that relatives should be contacted about caring for children when they are removed from their parental care.  New York’s Family Court Act §1017 mandates a search for relatives and notice to them upon a child’s removal. [1]  Other laws clarify how to address petitions for custody or guardianship by relatives during the pendency of an Article 10 proceeding. [2]

Unfortunately, while relatives are “preferred,” they have no right to care and may be diverted from becoming foster parents or even prohibited from becoming caregivers.  In such instances and others, there has been little to no funding for attorneys to assist relative caregivers who come in contact with the formal child welfare system.  Relative caregivers are often living on fixed incomes or have left the work force in order to care for children.  Even if indigent, they are not provided with legal counsel in proceedings to become kinship foster parents, legal guardians, or custodians in proceedings under Article 10 and Article 6 of the Family Court Act.

Recently, attention has shifted towards the appropriate use of relatives instead of foster parents as a diversion from foster care.  In New York, diversion means that children have been “paroled” to the relatives, meaning they care for the children but receive no foster care subsidy.  Kinship families facing diversion also receive no legal assistance, and they are not eligible for any payments or subsidies from a child welfare agency.

The foster care system requires that children either be reunited with the natural parent, or when that is not possible, be placed for adoption.  Even when kin are foster parents, the goal of foster care, required by federal and state law, is that the child be reunited with the parent, adopted or involved in some other permanency option.  When return to a parent and adoption have been ruled out, an ongoing placement with a relative may be the best option.  Effective April 1, 2011,when kin are foster parents, they are eligible for a new program called Kinship Guardianship Assistance Act (KinGAP),[3] which provides a stipend similar to foster care payments, and reimbursement for legal fees of up to $2000 per child, [4] for legal representation that will allow them to become legal guardians under KinGap.[5]  Once they obtain legal guardianship, they are eligible for subsidized guardianship payments.  However, there is no funding for legal assistance in any subsequent proceedings, should the parent seek to regain custody or increase visitation at a later date.

For these relative guardians, as well as the much greater number of informal kinship caregivers who were never foster parents, there is very little understanding of the legal rights regarding their care and custody of children and even less opportunity to protect their interests as guardians or custodians of children.  Kin, who start with fewer legal rights than parents, find that they are on their own, and sometimes are legally precluded from asserting that it would be in the best interests of the child in their care to remain in their custody unless they can prove extraordinary circumstances.

As described in the Task Force Report to the Chief Judge, family court pro se litigants represent about 74% of all litigation.[6]  While it is not known how many kinship caregivers cannot afford representation, Family Court Act Section §262 does not provide counsel to indigent petitioning non-parents nor to respondents in guardianship proceedings, and we are aware of no civil legal services organizations in New York State that provide representation for kinship caregivers in either Article 10 or Article 6 proceedings (neglect and private custody or guardianship proceedings).

With legal resources and kinship services continuing to shrink, the need for relatives to receive critical legal information and representation will only increase.


Successful models deserving expansion

In response to the continuing barriers to legal assistance, the New York State Kincare Coalition held a special legal assistance stakeholder meeting in December 2008.  Its findings were presented as part of both the 2008 and 2011 Kinship Summit Reports.  Empire Justice Center participated as a leader at these events and the discussion here is partially excerpted from the reports.[7]  The recommendations regarding access to family court are attached as Appendix II to this testimony.

Presenters at the legal assistance meeting described seven successful legal assistance efforts that include assistance to kinship caregivers, which are described below.  Two of these programs, Mid-Erie and the Family Center were defunded in June 2011 as part of the cutbacks to kinship services enacted by the legislature.

Legal Information:

1.  The statewide Office of Children and Family Services (OCFS) NYS Kinship Navigator
2.  Legal Information for Families Today (LIFT), headquartered in New York City
3.  OCFS regional kinship programs that offer legal consultations (currently 8 programs serving 11 counties, down from 21 programs serving 32 counties, after last June’s defunding)

Legal Representation:

4.  OCFS’ kinship program Mid-Erie Grandparent Advocacy Program (with Neighborhood Legal Services) (now defunded)
5.  MFY Legal Services Inc. Kinship Caregiver Law Project, located in New York City
6.  OCFS’ kinship program The Family Center, located in New York City (now defunded)
7.  Rural Law Center

The NYS Kinship Navigator provides over 40 cited legal fact sheets, ranging from federal Social Security assistance for grandparents to adoption, as well as a toll-free phone line offering legal consultations with its director or an attorney at the Pace Women’s Justice Center, and limited advocacy for callers.  The Navigator has partnered with Empire Justice Center to present trainings on kinship law for attorneys (CLE credits) and assisted local kinship programs in outreach to the legal community.  In 2012, the Navigator will also subcontract for the services of Neighborhood Legal Services, MFY Legal Services, Rural Law Center, and Empire Justice Center.

Legal Information for Families Today (LIFT) empowers unrepresented litigants with legal information and compassionate guidance so that they can successfully advocate for themselves in the Family Court system.  LIFT serves more than 25,000 parents and kinship caregivers each year through programs that are available inside New York City Family Courthouses in all boroughs except Staten Island: the Help Centers and Education & Information Sites, as well as programs available in the community, the Family Legal Center and Family Law Information Telephone & Email Hotlines. 

LIFT also produces 36 original multilingual Legal Resource Guides available in seven languages at all programs and on their website, with step-by-step information on various family law topics such as “The Rights of Relatives in Family Court” and “How to Start a Family Court Case.”

A few of the remaining 8 OCFS kinship programs have agreements with attorneys who provide private consultations.  Consultations provide caregivers with legal information, including warnings of potential custodial issues, suggestions on tactics and help with obtaining assistance.

Until its recent loss of funding, OCFS’ Mid-Eire program offered consultations inside Erie County Family Court and limited representation through its contract with Neighborhood Legal Services.  Its Grandparent Advocacy Program emphasized a team approach that wrapped services around the family.  The team was comprised of a Kinship Services Facilitator, a Family Advocate and an attorney.  They were located at the Erie County Family Court to facilitate referrals directly from the Family Court judges, court attorney referees and Petition Processing, Erie County Department of Social Services and Senior Services, and the larger community.  The team walked a family through both the process and the system until their custodial decisions and arrangements had been made.  They also followed up with linkages to existing community resources and monitor whether or not families have been able to access them.

MFY Legal Services’ Kinship Caregiver Law Project is a pro bono program offering legal representation and counsel and advice for relative caregivers in custody, guardianship and adoption proceedings in New York City where the children are not in the formal foster care system.  Currently, approximately 140 pro bono attorneys represent kinship caregivers in both contested and uncontested legal proceedings and hundreds of pro bono attorneys have been trained (receiving CLE credits) since the program’s inception in 2006.  They also offer court-based legal clinics where pro se litigants have the opportunity meet with an attorney for assistance in completing court documents.  MFY recently expanded the project to include assistance in obtaining public assistance benefits, aiding relative caregivers in completing applications, providing assistance in navigating the application process and representing clients at fair hearings when denied benefits.

In New York City, The Family Center’s OCFS kinship program had a full-time attorney on staff (until last June’s defunding).  The attorney provided legal consultations and limited representation for public assistance cases, custodial proceedings and housing.

Another resource is the Rural Law Center’s (RLC) kinship project.  The RLC, funded by the Interest on Lawyer Accounts Fund, offers a variety of kinship care services in upstate New York.  Among those is Kinship Care Continuing Legal Education for attorneys in exchange for a commitment to take a pro bono kinship case, petition assistance for grandparents who cannot access legal services, and ADR/mediation services in Clinton, Franklin and St. Lawrence Counties.  These Alternative Dispute Resolution (ADR) sessions allow family members to participate in private, confidential, voluntary mediations that often result in a family agreement regarding custody.  Most of those agreements are then converted to family court orders.  The advantage of using ADR is that parents, grandparents and often DSS caseworkers have the opportunity to work together to come up with a solution that is in the children's best interest.

Neither the pro bono Bar nor the Office of Court Administration provide any specialized legal assistance to kinship families.  However, because the report to the Chief Judge of the New York Court of Appeals,  The Task Force to Expand Access to Civil Legal Services in New York Report to the Chief Judge of the State of New York (November 2010), recommended increased funding for legal services to civil litigants, we view this as a promising opportunity and recommend that legal services funds target “family stability,” particularly to assist pro se indigent litigants and especially kinship caregivers in family court custodial proceedings.[8]  

There are other untapped resources including student programs at law schools, retired and volunteer attorney programs run by the Office of Court Administration (OCA), other non-profit volunteer attorney organizations and pro bono volunteers in law firms of all sizes across the state.  We recommend a focused effort to target these resources for help to kinship families and we also recommend that OCA provide online “do-it-yourself” forms for relative applications to aid in the drafting of petitions, and suggest more training for judges and attorneys for the children on the rights of relative caregivers. 

Legislative Changes

1.  Right to Counsel

Under Family Court Act §262, a relative caregiver seeking custody or guardianship of a minor child has no right to an attorney even if he or she cannot afford one.  Many relative caregivers have been caring for their kin for years before they interact with the legal system and clearly the best interests of children – and family stability – are at stake in these proceedings.  Yet, children are not uniformly treated.  The caregiver only has the right to counsel if he or she was previously awarded legal custody, not guardianship,[9] by a court order and the parent has returned to court seeking the return of the child.  The Family Court Act should be expanded to include kin who already are primary caregivers but do not have a prior court order and kin with a prior court order for guardianship (not just custody).  Including guardianship is especially important because kin will become guardians when exiting foster care for the new subsidized guardianship KinGap program. [10]

2.  Extraordinary Circumstances

Domestic Relations Law §72 permits a grandparent to establish the existence of “extraordinary circumstances” when the child has been in the grandparent’s care for 24 continuous months.  Once this is established, the court can consider, in a dispute over custody with the natural parent, whether remaining with the grandparent is in the child’s best interest.  We recommend expanding the definition of extraordinary circumstances in Domestic Relations Law §72 to include all relative kinship caregivers, not just grandparents, so that all relative caregivers can more easily obtain an extraordinary circumstances determination in custody or guardianship proceedings.  There is no good reason to differentiate between grandparents and other relatives in these circumstances. [11]  Of note, the Census Bureau estimates that 35% to 40% of all nonparent care is by non-grandparents. [12]  

Grandparents and other relatives, as well as many unrelated caregivers, provide care for children and many do so for extended periods of time.  Legislation could put all relative caregivers on an equal playing field in proving extraordinary circumstances.  It would also provide judges with clear guidance on establishing extraordinary circumstances based on extended disruption of custody.

Assistance for Pro Se Litigants with Mental Disabilities with Modification of Child Support Orders

Both custodial and non-custodial parents must litigate in Family Court to modify a child support order downward if they have a disability that prevents them from earning income.  The vast majority of low-income parents filing or responding to petitions to modify support orders are unrepresented and have very limited access to any form of legal assistance.  In addition, the pleading requirements and evidentiary standards for stating and rebutting a prima facie case to modify an order are difficult to meet.
The lack of assistance is an obstacle for all pro se litigants, but proves to be nearly insurmountable for parents with mental disabilities.  As a result, the anecdotal evidence suggests that most petitions filed pro se by individuals with mental disabilities are never heard by support magistrates because they are dismissed for failure to make a prima facie case, and most pro se respondents are unsuccessful in countering claims of failure to support because they are unable to provide acceptable evidence of inability to work.
It is hardly astonishing that individuals with mental disabilities find it hard to navigate the sometimes byzantine Family Court procedural requirements.  However, it is appalling that the very disability that prevents these parents from presenting their claims to the court is also the basis upon which modifications to support orders should be granted.  In other words, a mental disability will almost always prevent a pro se parent from obtaining a support modification to which they should be entitled based on their disability.

The outcome of the failure of the courts to hear and properly determine claims of disability in child support matters is often unrelenting, crippling debt, deprivation of the barest necessities of life and even homelessness for noncustodial parents.  In most cases, meager disability income payments are garnished to a level where disabled parents cannot sustain themselves, and even then the payments are insufficient to support their children.  Custodial parents with mental disabilities are precluded from obtaining the level of support their children need.  Thus, the current situation is one in which all members of the family lose.

Attached to this testimony is an article published in the Empire Justice Center’s Legal Services Journal (link here) that describes the problem and some suggested solutions in more detail.  The financial crisis faced by New York State and its court system likely precludes appointment of counsel for these pro se parents in most cases.  However, legislative reform to ease the evidentiary burden of proving disability as the basis for support modification, assistance from the court to access the process with aids such as detailed petition and response forms and instructions for submitting evidence could provide many litigants with the tools they need to receive a fair adjudication.

See also "Empire Justice Testimony on Domestic Violence Concerns at Family Courts" for more Empire Justice testimony before the NYS Bar Association's Task Force on the Family Court.

End Notes:
 [1] NY Family Court Act §1017(1), “. . . conduct an immediate investigation to locate any non-respondent parent of the child and any relatives of the child, including all the child’s grandparents, all suitable relatives identified by any respondent parent or non-respondent parent and any relative identified by a child over the age of five as a relative who plays or has played a significant positive role in his or her life and inform them of the pendency of the proceeding and of the opportunity for becoming foster parents or seeking custody or care of the child, and that the child may be adopted by foster parents if attempts at reunification with the birth parent are not required or are unsuccessful.”
 [2] NY Family Court Act §§1055-b and 1089-a.
 [3] For a complete description of  KinGAP, see J. Greenberg, Kinship Guardianship Assistance Program: A New Option for Children in Foster Care with Kin, Legal Serves Journal, Summer, 2011, available at:
 [4] NY Social Services Law §458-c(2).
 [5] NY Social Services Law §458-b defines when a child is eligible for kinship guardianship assistance payments.  Of the many requirements, the child must have been in the foster home of the prospective relative guardian for at least a consecutive six months prior to the guardian applying for guardianship, and both return home and adoption have been ruled out as possible permanency options for the child.
 [6] The Task Force to Expand Access to Civil Legal Services in New York Report to the Chief Judge of the State of New York (November 2010)  acknowledges the reality that the “best interests” of children are not served by pro se family court litigants who are unable to represent that interest.  The Report recommends more funding for legal services for Family Court issues related to family stability as part of the “essentials of life.” pp 39-40.
 [7] See: for copies of reports: Kinship Care in New York: Keeping Families Together (2011); Kinship Care in New York: A Five Year Framework for Action (2008).
 [8] LIFT submitted testimony on this issue during the Task Force’s fall 2010 hearings on Access to Civil Legal Services; testimony is available at
 [9] See NY Family Court Act §262(a)(iii).
 [10] Kin exiting foster care as part of the KinGap program will not have “permanent” placements because parents still retain their rights.  Guardianship based upon parental consent will retain a presumption that parental custody is in a child’s best interests, while guardianships based upon a finding of “extraordinary circumstances” will, at least, level the playing field.  Such findings eliminate parental preferences.  However, all guardianship inherently contains the risk of future petitions by parents to regain custody or increase visitation rights.
 [11] The 2008 summit report also included this recommendation.
 [12] The Federal Interagency Forum on Child and Family Statistics estimates that grandparents make up 61%, other relatives 29%, and non-relatives (fictive kin) 10% of kinship caregivers.




Proposed Amendment to Family Court Act §262

    §  262.  Assignment of counsel for indigent persons. (a) Each of the
  persons described below  in  this  subdivision  has  the  right  to  the
  assistance of  counsel.  When such person first appears in court, the
  judge shall advise such person before proceeding that he or she has  the
  right to  be  represented by counsel of his or her own choosing, of the
  right to have an adjournment to confer with counsel, and of the right to
  have counsel assigned by the court in  any  case  where  he  or  she  is
  financially unable to obtain the same:
    (i)  the respondent  in  any  proceeding under article ten or article
  ten-A of this act and the petitioner in any proceeding under part  eight
  of article ten of this act;
    (ii) the petitioner and the respondent in any proceeding under article
  eight of this act;
    (iii) the respondent in any proceeding under part three OR PART FOUR of article six of this act;
    (iv)  the parent,  foster  parent, or other person having physical or
  legal custody of the child in any proceeding under article ten or  ten-A
  of this  act  or  section  three  hundred  fifty-eight-a, three hundred
  eighty-four or three hundred eighty-four-b of the social  services  law,
  and a non-custodial parent or grandparent served with notice pursuant to
  paragraph (e) of subdivision two of section three hundred eighty-four-a
  of the social services law;
    (v) the parent  of  any  child  or OTHER PERSON HAVING PHYSICAL OR
  LEGAL CUSTODY OR GUARDIANSHIP seeking custody or  contesting  the substantial  infringement  of his or her right to custody of such child,
  in any proceeding before the court in which the court  has  jurisdiction
  to determine such custody;
    (vi)  any person in any proceeding before the court in which an order
  or other determination is being sought to hold such person  in  contempt
  of the  court or in willful violation of a previous order of the court,
  except for a contempt which may  be  punished  summarily  under  section
  seven hundred fifty-five of the judiciary law;
    (vii) the parent of a child in any adoption proceeding who opposes the
  adoption of such child.
    (viii) the respondent in any proceeding under article five of this act
  in relation to the establishment of paternity.
    (b)  Assignment of counsel in other cases. In addition to the cases
  listed in subdivision (a) of this section, a judge may assign counsel to
  represent any adult in a proceeding under this act if he determines that
  such assignment of counsel is mandated by the constitution of the  state
  of  New York or of the United States, and includes such determination in
  the order assigning counsel;
    (c) Implementation. Any order for the assignment of counsel issued
  under this  part shall be implemented as provided in article eighteen-B
  of the county law.

Proposed Amendment to Domestic Relations Law §72

Amend Title of Section:  Special proceeding or habeas corpus to obtain visitation rights to certain infant grandchildren; special proceedings or habeas corpus to obtain custody or guardianship in respect to certain infant children residing with relatives for a period of at least twenty-four months.

AMENDMENTS: § 2. Subdivision 2 of section 72 of the domestic relations law, as added by chapter 657 of the laws of 2003, is amended to read as follows:
2. (a) Where a grandparent or the grandparents of a minor child, residing within this state, OR A PERSON OR PERSONS WHO IS RELATED TO A MINOR CHILD THROUGH BLOOD, MARRIAGE, OR ADOPTION, RESIDING WITHIN THIS STATE, can demonstrate to the satisfaction of the court the existence of extraordinary circumstances, such grandparent or grandparents OR RELATIVE OR RELATIVES of such child may apply to the supreme court by commencing a special proceeding or for a writ of habeas corpus to have such child brought before such court, or may apply to family court pursuant to subdivision (b) of section six hundred fifty-one of the family court act OR SECTION SIX HUNDRED SIXTY-ONE OF THE FAMILY COURT ACT; and on the return thereof, the court, by order, after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interests of the child may require, for custody rights for such grandparent or grandparents or relative in respect to such child. An extended disruption of custody, as such term is defined in this section, shall constitute an extraordinary circumstance.
(b) For the purposes of this section "extended disruption of custody" shall include, but not be limited to, a prolonged separation of the respondent parent and the child for at least twenty-four  continuous months  during which time the parent voluntarily relinquished care and control of the child and the child resided in the household of the petitioner grandparent or grandparents or relative, provided, however, that the court may find that extraordinary circumstances exist should the prolonged separation have lasted for less than twenty-four months.
(c) Nothing in this section shall limit the ability of parties to enter into consensual custody agreements absent the existence of extraordinary circumstances.



Below is a complete list of the Kinship Summit Recommendations regarding legal assistance:

The 2008 Kinship Summit Report made two legal assistance recommendations:

1.    Create a statewide legal assistance network by enhancing current kincare legal resources and expanding other legal programs to include kincare representation through funding and other assistance of the Office of Court Administration (A, L, R-1-3)

2.    Mandate assigned counsel to kinship caregivers in Family Court Act §262 (L-3-4)
The 2010 Summit Report made 9 Legal Assistance recommendations:

1.    Provide permanent funding for legal services (consultations and representation) as part of the OCFS kinship program funding and ensure that legal services for kinship caregivers include legal information and assistance for matters regarding family law, education and public assistance. 

2.    The Office of Court Administration should create and provide “do-it-yourself” forms online and also make them available at the courthouses so pro se litigants may address “extraordinary circumstances” as well as best interests.

3.    The Office of Court Administration should include Family Court proceedings in its pro bono programs. 

4.    New York State should enact the recommended funding for “family stability” legal services in The Chief Judge’s Task Force to Expand Access to Civil Legal Services Report and also insure that a significant percentage of the funding targets family court pro se indigent litigants.

5.    Amend NY Family Court Act §262(a)(iii) to create a right to an attorney as a legal custodian and legal guardian where the parent has filed a petition for return of the child by adding “under part 4 of article six of this act” (currently only legal custody is mentioned).  Amend FCA §262 to include the right to assigned counsel to all primary caregivers, regardless of whether they have a prior order of custody or guardianship.

6.    Amend Domestic Relations Law §72 to include all relatives who may benefit from an extended disruption of custody as an extraordinary circumstance.

7.    Train judges, court clerks and attorneys for the children on the rights of kinship caregivers, including mandated distribution of OCFS kinship publications.

8.    Each family court in New York State should have a “help center” with information for kinship caregivers.  The center should have legal fact sheets available and a staff person who is able to provide legal information to kinship caregivers.  The New York City Family Court Help Centers and collaboration between the courts and LIFT should be expanded statewide to meet this need.
9.    Pro bono legal services should be encouraged by funding a regional and statewide kinship legal assistance project similar to those run by MFY Legal Services and by the Rural Law Center. This project would provide legal trainings (CLE) on kinship issues, assistance in establishing pro bono programs and be staffed by an attorney coordinator.  The attorney coordinator would assist pro bono attorneys who commit to representing kinship families (or provide petition assistance or ADR/mediation services) and also create a statewide network of pro bono legal assistance providers.