By Caleb O. Brown
Staff Writer (Snitch)
The votes are in. Family court is on its way to all 120 Kentucky counties as part of a constitutional amendment passed in November. Proponents say the new system will ease many problems families face when they are forced to bring their issues — child delinquency, divorce, custody, child support and emergency protective orders — to a courtroom.
But for a few critics, the votes mean nothing. What they want — still — is a convincing argument for family court and demonstrable proof that the state’s nine pilot projects have been effective. They claim no such argument has been made and no solid evidence of success has been offered.
“One Family, One Judge, One Court” is the oft-used slogan of family court proponents. They say the court provides a cohesive set of services, reducing the time families must spend litigating and therefore their legal costs. The slogan itself refers to the economies that could be reaped by litigants who would no longer slog through innumerable days in a regular circuit court, district court or both. Supporters claim the evidence in favor of the court is readily available and largely self-evident to those inside the system. The overwhelming vote in favor of a statewide, unified family court system is clear evidence that voters want family court in their lives, proponents say.
Ann Swango, director of Kentucky’s chapter of the Children’s Rights Council (CRC), begs to differ.
There was plenty wrong with Kentucky’s family court system even before November’s amendment settled into the state constitution, she said. But just five years ago, Swango was singing a different tune.
“When I first heard of family court, I was all for it,” she said. She’s since become more cautious, but says she still likes the idea if “things are done right.” She doesn’t think they have been.
CRC opposed the family court amendment, chiefly because of concerns over the anticipated costs of a statewide family court system. Swango claims the evidence, for or against the effectiveness of family courts, never materialized. Due process rights of families, she says, get ignored. She argues litigants could be spending more cash than necessary to get through the system, and she takes particular issue with Kentucky’s chief justice, Joseph Lambert, “politicking” for passage of the amendment in 2002.
After several phone calls to his office, Lambert, according to his secretary in Frankfort, was “not interested in being interviewed” by Snitch.
Many large interest groups favored the amendment’s passage, and, in an interview with The Lane Report last fall, Lambert acknowledged that he was pushing the amendment. He said he was “traveling a lot … making a lot of speeches and appearances of one kind or another on behalf of the family court amendment.” He said that groups like, “KEA, the Kentucky Farm Bureau, the Burley Tobacco Growers Cooperative Association and the Kentucky Rural Electric Cooperatives” all backed the amendment.
Swango pointed out that none of those groups is family-centered. In addition to CRC, Lexington’s Family Foundation and a few other family-focused groups opposed last year’s amendment.
‘An Identified Need’
Family court was created in Kentucky in response to “an identified need,” according to Carla Kreitman, the director of Kentucky’s family court division. Kreitman joined the Jefferson County family court pilot project in 1991, shortly after the new court began hearing cases. She’s worked in the system ever since, taking on an increasingly administrative role.
The identified need, according to Kreitman, was largely the result of a judicial article in 1974 that shook up the various courts, putting them into four basic layers: circuit, district, appeals and the Supreme Court.
“It revamped the whole court system,” she said. “Prior to that there were all kinds of different courts. There were traffic courts and misdemeanor courts and chancery courts.”
Though the judicial article simplified much of the court system, family issues were separated into different courts, Kreitman said.
“Child abuse or neglect, paternity cases, domestic violence cases were in the purview of district court,” she said. “Divorces, adoptions, termination of parental rights were in circuit court.”
This led to a feasibility task force and a study on caseloads in the courts to see if, as Kreitman put it, “families are coming into the justice system through different doors” for different types of cases, most of which she said could be handled by a single entity, a single judge. That open question led Kentucky Chief Justice Robert Stephens to create six family court judgeships in Jefferson County, all volunteer positions, for Kentucky’s first-ever family court pilot project. It started in 1991. Many more would follow within the decade.
But Swango says the due process rights of individuals in that pilot project were ignored.
“You don’t just open up a test program and float all these people through,” she said. “Some people have said the whole thing was unconstitutional from the very beginning because people did not have the option” to use a traditional court.
Swango admitted, however, that the main constitutional challenge to Jefferson County’s pilot project was rejected early on by the courts.
Spreading the word
In 1998, Gov. Paul Patton signed House Bill 544, which brought family court pilot projects to eight new sites throughout the commonwealth. A ninth project was authorized by the General Assembly. Three courts launched within the year, and six more began in 1999.
How those family courts have functioned concerns George Thornhill. He sat on the original Family Court Feasibility Task Force, which made final recommendations to the General Assembly on how family courts should be adopted and the values that should be upheld.
“I was supportive of family court at the time, but then they disregarded our recommendations,” he said.
Thornhill said that when he was on the task force, one of his chief concerns was the high legal cost of divorce to families. He said the problem was the Domestic Relations Commissioner, a quasi-judicial position in which someone sat in judgment and then presented “findings” to a judge along with a recommendation.
Domestic relations commissioners have been eliminated by statute, but Thornhill says they’re just using a different name.
“Now they’re going to be mediators, not commissioners,” he said.
Kreitman admits that the Jefferson County pilot project used domestic relations commissioners for some time, but only because “they didn’t have enough volunteer judges to hear the caseload,” and so cases were divvied up between traditional courts and family court.
“The family court only heard half of the divorce cases,” she said. “We don’t want that barrier for the citizens of the commonwealth before they go to a judge. It’s been a constant philosophy to get rid of DRCs (domestic relations commissioners). They continued to use them in the pilot projects, but the DRCs only heard things that needed to be cleared up quickly, temporary motions. It was the desire to get rid of them.”
But are mediators, as Thornhill claims, merely domestic relations commissioners in disguise?
Kreitman said they’re completely different.
“Mediation permits the parties to play a role in the decision-making, separate from the role of a domestic relations commissioner,” she said. “The commissioner was a quasi-judge. The mediator allows the parties to come up with their own conclusions and then that is submitted to the judge.”
The cost of mediation, Kreitman contends, is typically far less than would occur in a different court.
“Every mediation program that exists in family court has some kind of sliding scale,” she said. “The cost is based on the litigant’s ability to pay. Some mediations are free. Parties are required to mediate, but you don’t have to pay a mediator. You can see your priest for mediation.”
For example, Kreitman said, Christian County’s family court uses staff members for mediation, which is free to litigants.
Swango claims that a lack of local rules to govern the court processes in many of the pilot projects keeps litigants in the dark as to their rights, and she charged that there is a veil of secrecy over the lack of rules.
Kreitman said the statute did mandate that local rules be produced, but said there was no timetable established to do so. Further, she said, in the absence of such rules, the rules of civil procedure govern. Due process, Kreitman said, was at all times preserved.
Measuring success
“There is no question that family courts have been successful,” wrote Chief Justice Lambert in Kentucky Living in early 2002, but critics dispute that claim. Data gathered by Kentucky’s Administrative Office of the Courts haven’t offered a definitive answer.
Both critics and defenders of family court agree that little public research has been conducted on Kentucky’s family courts, which aggravates Swango. She has repeatedly requested “social proof” of the system’s success but says she’s received no evidence from the Administrative Office of the Courts on whether litigants prefer family court to circuit and district courts.
Kreitman said it’s difficult, if not impossible, to do long-term studies on projects that have been in operation for such a short time.
She cited two studies that she said bolstered many of the claims made by family court supporters. Chief among those claims is that families like the family court system when they’re exposed to it. The first study was done by the University of Kentucky and another produced by the Administrative Office of the Courts with a grant from the State Justice Institute, Kreitman said. The second work she co-authored.
The first piece of evidence — provided to Snitch by the Family Court Administrator’s office in Jefferson County — is, in fact, not a study. Called “Family Court Development Project Final Report,” it gathered information on Jefferson County’s pilot family court project in 1993, two years after it began.
The report contains plenty of survey data gathered from families, attorneys, judges and the public.
What the development project’s report does not contain is information on authorship, methodology or the relative independence of those unnamed authors. No names are mentioned in the report at all. The report’s introduction also notes that the Family Court Development Project “provided assistance to the Jefferson Family Court in implementing mediation” in some contested cases.
The report gathered information on litigants’ feelings before and after experiences in family court. Again, no information was presented on how those interviewees were selected. And the report used a sample size of 89 in order to garner litigants’ sentiment about the Jefferson County system. Seventy percent of those polled were women.
The portion of the report that was collected by the University of Kentucky was part of the 1993 Kentucky Spring Poll. The Family Court Development Project wrote the questions asked in the poll. That portion of the report was meant to gauge Kentuckians’ feelings about family court as a concept.
Those polled were overwhelmingly in favor of the idea, but most of them had no previous knowledge of the family court operating in Louisville.
The second piece of evidence, also provided to Snitch, was a study titled “Rural Family Courts in Kentucky: Lessons Learned.” It was produced with grant money from the State Justice Institute.
Kreitman, a co-author, seemed surprised to learn that the study involved no actual litigants, either as interviewees or members of focus groups. Interviewees, the study said, “targeted instrumental leaders in a home county, leaders defined as those who contributed to the creation of a family court in their respective community.” Focus groups consisted largely of family court staff.
Though the study seemed to be meticulous in its examination of responses from those community leaders and family court staff regarding implementation of the system, the study’s concluding analysis stated, “Focus group participation was restricted to community leaders, family court staff and social work professionals. By necessity, others, i.e., litigants, clerk personnel and law enforcement officials, were excluded from focus group participation.”
Kreitman says work continues by the Administrative Office of the Courts to “quantify successes” of family court.
“We can use CourtNet (a computer system for maintaining court records) to dig up a number of statistics,” she said. “We’re having to look at process rather than outcome because we don’t have enough data to determine long-term successes. We are working on developing those tools. It’s not impossible to gauge those measurable outcomes.”
The amendment
A pamphlet promoting passage of the amendment last year read, “Family Courts have a ‘project’ status, which place them at risk for constitutional challenge.” The pamphlet was produced under the auspices of the Administrative Office of the Courts and included a brief endorsement of the measure by Lambert.
Passage of the amendment, the pamphlet argued, would allow family courts “to continue to operate successfully without the possibility of constitutional challenges.”
Kreitman agreed that the possibility of constitutional challenge was a driving force in getting an amendment passed. She said the main constitutional challenge to the family court pilot projects had been rejected by the courts, but the ruling also said, according to Kreitman, “must, at some point, become permanent.”
Thus, for the pilot projects to continue to function, successfully or otherwise, an amendment was needed.
The measure sailed to victory in November 2002 with almost 76 percent of the vote.
The cost
The cost of expanding family courts to the entire commonwealth presents another point of contention between proponents and detractors.
A family court progress report presented by Kreitman in March of 2001 laid out anticipated costs for a new family court, assuming that it would serve only one county circuit. The estimate assumed that such a court would launch after July 1, 2001. Total personnel, operating and capital outlay came to $680,700 a year for each one-circuit family court. Of that, the total recurring annual expense was $537,700.
It’s that kind of potential cost for a single county expenditure that worries people like Sonny Landham, an independent gubernatorial candidate who views the spending as little more than “a payoff to laywers and hangers-on.”
Said Landham, “The report stated that it would cost about half million dollars to maintain each court each year. It’ll cost $60 million a year to the state to maintain these courts.”
Landham did his reckoning on one family court for each of the state’s 120 counties, but in fact there will be far fewer courts, because many judicial circuits comprise two or more counties.
Kreitman says the projections in her report have been misrepresented.
“That was an estimate of what we thought it would cost” to set up a new court, she said. “What we’ve found is that it’s actually less costly.”
She said little of that $537,700 annual cost constitutes new spending and added that many of the costs for the new family court systems — which will be landing with greater regularity across the state in the near future — won’t exist uniformly.
As pilot projects have been instituted, Kreitman said, “We found that we didn’t need all of those things. We were able to use a number of existing resources.”
Many of the judgeships, for example, will be justified soley through larger caseloads. Kreitman admitted, however, that family courts do result in additional costs.
“What makes family court different from a circuit court judgeship is the social worker and the court administrator. Those are the only consistently new costs.”
The pace at which family courts will launch depends on the state budget. New family courts will not begin without the spending authorization of the General Assembly and future Kentucky governors.
The Administrative Office of the Courts reports that dozens more counties will be served by family court by the end of this year.
