Any given custody case has its share of challenges, trials, tribulations, and issues which need to be overcome. Unfortunately, the Philadelphia Court system (and the surrounding ones to a lesser extent, but this article focuses mainly on Philadelphia) has added a new one: the dreaded backlog.
What is the backlog?
Every case filed in court, including custody court, goes to the back of line of all the other cases filed previously in terms of the scheduling of hearings and such. This makes logical sense, seems fair enough, and I do not think – with the exception of emergency matters – anyone really objects to a system of “first come first served.”
The problem – and the injustice – rears its ugly head when litigants in Philadelphia custody court realize how long the line is that they now must stand in to wait for their matters to be heard.
The standard procedure is this: (1) a complaint for custody (or petition to modify custody) is filed; (2) a conference before a hearing master is scheduled to hopefully air out and resolve the issues; (3) if the master is unsuccessful in bringing the case to a close, a trial before a judge is scheduled; and, (4) a judge’s trial can be a normal hearing list (1 hour or less), semi-protracted (1/2 day) and protracted (full day) and if one needs anything above a normal hearing list one must petition for it. Of course, if one disagrees with the final decision by the judge, appeal options are available just like any other case.
This process seems straight forward and typical enough, right? So, what’s the problem? Well, let me ask you, my dear readers, how long do think one should wait between the filing of the complaint (or petition) and a hearing before a master (let alone a judge’s trial)? A couple of weeks? A month? 45 days? 2 months? 3 months? What do you think?
What if I told you that if you filed a complaint or petition for custody in Philadelphia Family Court today you would be lucky to have your master’s hearing by September 2014 – ELEVEN MONTHS from now! Of course, if the master is unsuccessful in bringing a case to a close, when will the trial happen? At least six months later, if not another year if a protracted trial is need. So, when all is said and done, you may not get a trial in your matter until nearly two years after the initial filing. Get this, I have had a protracted trial with a client which was not complete after a full day trial so a second day had to be scheduled. When? Day two of the trial was scheduled SIX MONTHS later. How can a judge keep track of the issues after six months? Besides, all sorts of other issues arise in the interim. I just got a master’s hearing continued to another date just yesterday; the new date? Nearly a year from now, which means that custody complaint will not reach a master for nearly TWO YEARS.
I do not see how anyone could view this situation as anything but unjust. Unjust how? Well think of the logistics of all of this. First, the children stuck in this situation are caught in the balance for months on end not really knowing when or how their lives will shake out, all the while their parents are engaged in a cold war with one another without any clear direction from the court. Second, and perhaps most importantly, without a court order, both parents are entitled to custody without limitation. So, if a mother physically has her children when she files a complaint for custody she does not, absent a court order, have any obligation to turn over the children to the father for him to have visitation. What is the father’s remedy to having his children withheld? Well going to court of course, but that only means getting into the back of a year long line; is that a remedy? Do parents have an incentive to withhold their kids from the other parent? Of course! As I said, both parents are entitled to custody where there is no court order, so the risk of turning over the children to the other parent in good faith carries with it an enormous risk, which should be pretty obvious. Once the other parent receives the children, that parent has no obligation to give them back! So, what is the remedy for the parent deprived of the children? Well, go to court of course, but again that means waiting in a year long line. Third, these enormous wait times also artificially distort the legal arguments to be made in court once the hearings actually do happen. How so? Well, think of it: a mother has her children for a year (at least) without father’s involvement (likely due to fear that he would withhold them from her if she gave them up to him in good faith); what are the results in such an arrangement? Well, mother can confidently go to court and argue that she is the primary care giver and she knows all of the doctors and teachers for the children and is intimately involved in all those matters and father is not and would have to start from scratch. To disrupt that would be to adversely affect the children and the lifestyle to which they are accustomed. Further, if the children are very young (say toddlers), the mother will argue that this father has no experience with young children so giving him extended custody is adverse to the children’s interests, not to mention the trauma now to be caused to the children by giving them up to someone who is a virtual stranger to them. Of course, one would think that a mother in this situation should be sanctioned in someway, but custody determinations are made based on what is best for the children and is it really better for the children-at-issue to profoundly disrupt their lives with a virtual stranger?
Of course, people are very frustrated with this state-of-affairs. It is notable that Pennsylvania Rule of Civil Procedure 1915.4 requires a 45 day turn around time for hearings on custody, so the court system is fundamentally in violation of the rules. I spoke to a Philadelphia Family Court judge who I know personally fairly well about this and he said that he and his fellow judges think the backlog is a mark of embarrassment for their court, but they are powerless to do anything about it due to the crushing numbers of litigants and the insufficient number of judges. Of course, the judges’ embarrassment really does not do anything for the litigants.
Due to the frustration, litigants have sought alternative legal means to address their issues. It first began as filing for an emergency scheduling for their custody. Of course, sort of like that alternative route during a traffic jam: when too many people know of it, it too becomes jammed. The line for emergency petitions also became prohibitively long. It is now at the point where an emergency petition will only be granted after an explicit showing that the children are in actual danger from drugs or violence. Withholding one’s children for months on end no longer justifies an emergency. Another way the backlog has been tackled is through the filing of Protection from Abuse Orders (“PFA”) on behalf of children. Filing for a PFA has a turn around of about ten days and if children are the subject of abuse, a limited custody provision can be included in the PFA order accordingly. So, what has happened? Well, per a PFA judge’s clerk I was speaking with last week, the PFAs on behalf of children amounted to less than five per month; now they get five per day. Are children now being abused at an exponential rate or is the PFA system being co-opted as a means for a speedy custody trial? I think it is pretty obvious frustrated custody litigants are using PFAs to achieve their custody goals at least in the short term.
On a personal note, I think the situation described above really shows us the fruits of the sexual revolution, having children out-of-wedlock, and the enormously high divorce rate. Fourteen judges and at least a half-dozen custody masters are insufficient to handle the deluge of cases is an absolute disgrace. It is a sad testament to the state of our society. Aside from a revival of sexual morality in our culture, we need more judges and masters, or masters with more power. Until then, custody litigants need to know that they will be in it for the long haul and the injustice of being deprived of one’s kids because of this backlog is an unfortunate reality for the foreseeable future.