10 Children’s Legal Rights Journal [Vol. 39: 1 2019]
Our Lives67 – stand out in part because the United States is significantly behind the rest of the
world in how it socializes – or fails to socialize– youth into our democratic, self-governance norms.
Our foster care system, though greatly reduced over the past ten years, still has over
400,000 children in it68 which, perhaps unintentionally, provides a vast pool of potential
participants in real-life decision-making. Considering that no child enters foster care (nor stays
there beyond a year’s time) without the explicit order of a judge, there is a tremendous opportunity
for these same children to be actively engaged in the judicial process that leads to these and related
decisions. While no child should be forced to come to court if they do not want to69 – and testifying
in open court during an abuse trial may be harmful to and undesired by the child70 – if we create
the right court environment, with attorneys and courtroom staff who recognize the importance of
the child’s presence, there is no reason why more children should not come.
From my perspective on the bench, I always appreciate the strong client-directed advocacy
from “attorneys for the child,” the term that replaced “law guardian” when New York adopted a
client-directed model of representation. 71 I respect and admire their decision to abstain from taking
a position on the substantive outcomes in a case when their clients are quite young, or it appears
the client is not able to make a reasoned decision to guide the advocacy. If they elect to “substitute
judgment” in those cases, I expect that they have undertaken a Peters-like immersion into their
client’s world, and that the position they express is the product of rich, deep learning and not
merely an articulation of their personal values.
Regardless of how they have reached their position on substantive issues, however, from
the perspective of the bench, the most important thing attorneys for children can do is to protect
their clients’ procedural and participatory rights. That means pushing for timely hearings and
dispositions, even if the other parties seek adjournments. More broadly, child advocates should be
aligned with the family court’s mission to treat all litigants fairly and with respect, and to ensure
that the people whose lives we affect so deeply are meaningfully involved in the judicial process.
Family and juvenile courts have long been positioned to be a forum for problem solving.
Even in a busy urban environment where resources may be lacking, judges can infuse daily practice
with therapeutic practices, such as greeting parents directly, by name; making eye contact;
listening actively; and treating parents as experts on their families. 72 These and other techniques
bend some of the legal, social, and institutional rules that bind more traditional courts, and create
more respectful and inclusive environments. 73 While the therapeutic jurisprudence approach has
its critics, 74 the separate but related concept of procedural justice is, I believe, central to family
court work and absolutely essential if we are to be at all successful. 75 Four principles define the
67 See https://marchforourlives.com.
68 Children’s Bureau, U.S. Department of Health & Human Services, The AFCARS Report 24 (Oct. 20, 2017),
https://www.acf.hhs.gov/sites/default/files/cb/afcarsreport24.pdf. After dropping below 400,000 in federal fiscal year
2012, the total number of children in foster care has been gradually increasing each year since, with new entries
69 Matter of Shawn S., 163 A.D.3d 31 (N. Y. App. Div. 2018).
70 See Matter of Giannis F., supra note 47.
71 2010 N. Y. Sess. Laws Ch. 41 (A. 7805-B) (McKinney).
72 Vicki Lens, Against the Grain: Therapeutic Judging in a Traditional Family Court, 41 L. & SOC. INQUIRY 701
75 Tom Tyler, Group Conflict Resolution: Sources of Resistance to Reconciliation: Governing Pluralistic Societies,
76 LAW & CONTEMP. PROBS. 187 (2009).