Photo by: Marc Fader

Because the section of Family Court that handles abuse and neglect cases is oriented toward protecting children, rather than determining a defendant’s criminal guilt or civil liability, it operates under rules that are very different from other courts’.

Family Court differs from other courts in obvious ways— most critically, the subjects of Family Court matters are children and families. Family Court’s goals are restorative rather than punitive, aimed at preserving (or rebuilding) families rather than punishing culprits. And civilians can represent themselves pro se as a matter of course in all Family Court parts except for Juvenile Delinquency.

But subtler differences are also present. The rules of proof, for one, differ substantially from conventional proceedings.

In child protective proceedings in Family Court, for example, the standard of proof—the evidence needed to render a decision—is a “preponderance of the evidence.” It is, jurists say, the lowest evidentiary bar. Basically, it means that a judge can make a finding as long as there is more evidence for it than against it. In criminal cases, by contrast, the standard is “beyond a reasonable doubt”—a high bar but an appropriate threshold when life and liberty are at stake. Many might argue the stakes are similarly high in Family Court. “Clear and convincing” evidence is the standard in many civil cases; this applies in a minority of Family Court matters, like paternity cases and the termination of parental rights. “Clear and convincing” resides somewhere between “preponderance of the evidence” and “beyond a reasonable doubt.” It means what it says. The evidence must convince the judge of its integrity, but it does not have to eradicate judicial doubt. This judgment is highly subjective and depends in large measure on attorneys’ zeal and courtroom skills and the mind-set and experience of the judge who hears the case. Because Family Court cases have no juries, all decision-making rests with judges and their proxies—the magistrates and referees.

Standards of evidence are also unique. In cases of physical abuse, the prevailing principle is res ipsa loquitur: “the thing speaks for itself.” The discovery of a baby with broken bones—very unlikely to be self-inflicted—implicates the parents or caregivers. Whereas criminal (and civil) defendants receive a presumption of innocence, in cases of physical abuse, there is a presumption of guilt.

And evidence that a child’s “impairment”—the situation that brought the child and family to the attention of ACS and Family Court—is lessened outside the care of the parent can be offered in support of allegations of abuse or neglect. The absence of bruises on a child in foster care can “prove” things are better in foster care than at home.

Notably, the actual fact of abuse or neglect is not an actual requirement of child protective cases. A child who is, in the opinion of ACS caseworkers (or the social-service workers at agencies that subcontract to ACS), at imminent risk may also be subject to child protective procedures.

Imminent risk is a legitimate legal strategy to remove children from harm’s way before harm occurs. But it is particularly challenging to explain to parents whose mental capacities may be lacking, lawyers say: How do you explain to a young mom that her expected inability to properly care for her child is sufficient reason to remove the child from her care?

In Family Court, the burden of proof shifts as well. In traditional criminal and civil court proceedings, prosecutors or plaintiffs have the burden to prove what happened and who did it. In child protective cases, the existence of injuries that can’t be honestly attributed to accidents is enough for a finding of abuse or neglect—enough to bring the case to court—unless the parent can disprove the charges.

Instead of prosecutors’ having to prove guilt, the burden shifts to parents to prove their innocence as they try to disprove abuse or neglect. They have to prove a negative, the absence of an event, in order to convince the judge that they are innocent of the charges.

The rules for testimony are also different in Family Court. In child protective fact findings, hearsay evidence is admissible. Hearsay is not accepted as testimony in criminal trials. There are certain exceptions in Family Court, but the corroboration standard is very low, judges say. Basically, any evidence that tends to support the truth of an out-of-court (or hearsay) statement can be cited as legitimate corroboration. So a caseworker’s recollection of a mother’s frustration—”These kids are killing me! I can’t take the stress!”—can be considered evidence of imminent risk in a fact finding, on the basis of a caseworker’s say-so.

The practice of cross-corroboration permits the words of children, unheard in public court, to enter testimony as evidence. If one child says, “My mother hit me,” and a sibling tells a caseworker or lawyer that their mother uses corporal punishment, the cross-corroboration, brought into testimony, establishes the case against the parent unless the parent can refute it. (While children rarely testify in court, many judges meet with children in camera and use what children say in private to inform their decisions.)

Meanwhile, traditional legal protections conferred on privileged relationships are not in place. Private conversations between spouses, for example, are ordinarily protected in civil proceedings. In Family Court, they’re fair game. That’s because Family Court law mandates that traditional privacy privileges, which protect communications by the nature of the relationship, do not apply in child protective cases. Husbands may be compelled to testify about their wives, grandmothers about their daughters, and therapists and social workers about their clients or patients. In civil cases, married partners can claim privilege and not testify against each other. This protection does not apply in child protective cases in Family Court.

Even the Bill of Rights isn’t quite the same in Family Court. The constitutionally guaranteed right against self-incrimination doesn’t apply in child protective cases; there is no “taking the Fifth” in Family Court. The failure to testify on one’s own behalf allows, and even encourages, the court to “draw the worst possible inference”—that all the charges against an individual are true because no testimony has been offered to refute it.

An additional layer of complexity concerns families or individuals whose legal matters reside in both Family Court and the state court system (criminal or civil court). The same person can be tried for the same or similar events in both systems, because the courts have different goals. Family Court aims to be rehabilitative and restorative, either supporting existing families or creating new ones. Criminal court is generally more punitive in outlook and less focused on systems—the family—than on the individual defendant.

Trials in both court systems may proceed at the same time or in sequence. If a Family Court case proceeds first, however, all the testimony offered there can be used in criminal court as sworn testimony—legitimate backdoor access for hearsay evidence, which might have been given in a Family Court setting where the individual could not exercise his or her right against self-incrimination.