PARENTAL REPRESENTATION ADVISED

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An ongoing federal lawsuit filed on behalf of battered spouses and their children in foster care holds more than the possibility that the city’s Administration for Children’s Services will end its practice of automatically removing kids from mothers who report abuse from their partners. It is now increasingly evident that Eastern District Court Senior Judge Jack Weinstein is taking seriously the plaintiffs’ contention that the right of children and parents to live together without interference from government is being seriously abridged by inadequate legal counsel in Family Court–a phenomenon they, as well as lawyers and judges in the courts, attribute to New York State’s rock-bottom compensation for court-assigned counsel. A ruling in their favor could significantly raise the rates for parents’ lawyers, which at $40 an hour for in-court work and $25 for outside preparation (with an $800 per-case cap) are the second-lowest in the nation.

At the culmination of oral arguments last week in In Re Sharwline Nicholson, Judge Weinstein announced he would schedule hearings to decide exactly how much attorneys should be compensated, which lawyers involved in the case say are likely to be held later this month. Judge Weinstein reportedly commented that “the thumbs are on the scales of justice” when parents don’t have competent legal assistance in facing the city’s staff attorneys.

In a preliminary injunction issued on October 25, which if finalized will take effect in April, the judge also indicated he would like ACS to withdraw pending Family Court cases in which being a victim of domestic violence is the only allegation supporting removal of a child from a mother. In addition, he called for the city agency to send home children who have already been placed in foster care on that basis, and to arrange for protection of mothers and children from abusers without separating mother and child “if that is at all reasonably possible…. [Separation] shall be the alternative of last resort.” Attorneys for the plaintiffs, the city and the state have been conferring with Judge Weinstein to work out revisions to the draft memorandum.

In the memo, Judge Weinstein preliminarily ordered a minimum rate of $75 an hour for lawyers, pending further discussion at the upcoming hearings. The New York County Lawyers’ Association is pushing for $100 an hour with no per-case limit. According to a recent report in the New York Law Journal, only about 25 parent lawyers are currently working in Brooklyn, Queens and Staten Island, down from 125 a few years ago. Cases are typically delayed if no counsel is available, keeping wrongly separated families apart and making it less likely that they will be able to be reunified.

If Judge Weinstein rules for higher rates, the state will almost certainly file an appeal, making any increase unlikely to take effect for some time. But plaintiff attorneys say a federal court ruling finding the current rates unconstitutional could provide precious leverage with the state legislature, which has the power to raise the rates. “It would force the issue,” said Carolyn Kubitschek, a lead attorney in the class-action suit.