It seemed almost too good to be true: Mary Beth Novak found a job in Montgomery County as a police officer and a home she could afford in Royersford, in a good school district, just in time for her daughter to start fifth grade. No more scrambling to arrange transportation from her Northeast Philadelphia home to Catholic school in Bucks County — a commute that went from difficult last year to impossible now that Novak works out of town.
Now this dream, which seemed tantalizingly close, is vanishing like a mirage. Novak is bracing to back out of the house purchase, and lose close to $8,000 — her deposit and related costs. And she still isn’t sure where her daughter will be going to school next month, or how she’ll get her there.
The problem is that even though she has primary custody and support from a counselor who Novak and her ex had agreed to defer to in case of disputes, her daughter’s father has opposed the move that would take her an hour’s drive away. And, though Philadelphia Family Court is required under state law to provide an expedited hearing to resolve relocation disputes, her court date is not until next March.
“I had no idea all this stuff could happen,” Novak said. “I don’t know what to do.”
Novak is one of thousands of parents affected by a backlog in the court’s Domestic Relations section that attorneys call “unconscionable,” “tragic,” and “unbearable,” given that in some cases parents are being denied access to their children, or are losing jobs and homes while they wait for the court to weigh in.
“It’s extremely frustrating for the parents, but also really tragic for the children,” said Susan Pearlstein, co-supervisor of the Family Law Unit at Philadelphia Legal Assistance. “Things become so contentious and stressful when you have to deal with this lack of access and waiting to go though the court. The impact on children can’t be overstated.”
Attorneys who work in the system point to a slew of contributing factors: a shortage of judges and other staff; inadequate opportunities for emergency hearings; inefficient processes that allow cases to bounce almost endlessly between courtrooms; and the foibles of elected judges who may have little or no experience in family law.
Seven lawyers who practice in the court said court dates are now being set nine months or more in the future. (Family Court dockets are not accessible to the public.) A spokesperson for the court, Martin O’Rourke, said he did “not believe” there is a nine-month backlog but said any delays are due to vacancies on the bench.
“They’re working diligently, and doing the best they can being two judges short,” O’Rourke said, adding that as of Tuesday, Judge Stella Tsai is going to be temporarily reassigned to the court for six months to help work through the backlog.
Family Court has been down a judge since January 2016, when Judge Angeles Roca was suspended for intervening in a tax case involving her son. Her seat, one of six vacancies in Philadelphia, has been officially open since November 2017. A spokesperson for Gov. Wolf, who must nominate replacement judges for state Senate approval, said in an email that “discussions with the Senate are ongoing.”
Making matters worse, Judge Mark Cohen — the former state representative elected as judge in 2015, despite a not-recommended rating from the Bar Association and no experience in practicing law — has been on an extended leave since May 15 and expected to be out until sometime in October. He had been specially assigned to handle relocation cases.
O’Rourke said that up until Cohen took ill in May, relocation cases were being heard within two months. Now, he added, the court is working quickly to prioritize and reschedule these cases.
Gary Mezzy, Novak’s lawyer, noted that state rules require expedited hearings in relocation cases. “I’ve seen this rule followed in every other local county,” he said. “This constitutes a major statutory violation of litigants’ rights.”
A lack of resources
In 2017, there were 76,000 filings in Philadelphia Family Court’s Domestic Relations section, including 21,800 custody filings in Philadelphia.
Lawyers say that’s an extraordinary workload for the designated quota of just 11 judges.
A judicial-needs assessment conducted by the Administrative Office of Pennsylvania Courts last year found that the court has approximately the correct number of judges for its caseload.
But that doesn’t account for complicating factors, like the fact that more than 85 percent of people appearing in Family Court don’t have lawyers, which drags out proceedings.
“There’s a lack of resources on a lot of levels,” Pearlstein said, noting, for example, that there are just two Spanish-language interpreters at Family Court. For families speaking other languages, delays related to getting an interpreter are even more problematic.
Attorneys say delays go well beyond relocation cases and began long before the current vacancies.
Sarah Katz, of Temple’s Family Law Litigation Clinic, said that, in recent years, the court has increased the ranks of its custody masters, lower-level officials who can resolve a limited number of issues. That helped, she said.
“But the things that need to go in front of a judge are things like requests for primary custody, which usually means there’s something serious going on — some accusation of domestic violence, child abuse, substance abuse. There’s some urgency to the situation, and those are the types of cases that aren’t being heard.”
Megan Watson, a lawyer with Berner Klaw & Watson, has been collecting examples. In one recent case, a party filed a complaint for custody in September 2017. They appeared before a custody master, where they agreed to a temporary custody order in November 2017. A judge trial was scheduled for August 2018, and then, due to a conflict, was rescheduled for March 2019.
By contrast, state rules set much shorter deadlines: 180 days after filing for a judge trial to be scheduled, 90 days after that for the judge trial to occur, and 15 days after that for a judge to issue a decision.
“They never do that, and nobody enforces it,” lawyer Richard Bost said. “Eight months for a hearing to be scheduled in front of a judge has probably been the norm for the last three years or so.”
There is a process to request an emergency hearing for issues that can’t wait.
The problem is, Pearlstein said, “in order to get an emergency, a child has to be practically dying.”
Recently, she was denied an emergency hearing for a woman who had primary custody of an 8-month-old, but who had not seen the child in a month because the father, who was supposed to have custody on weekends only, was withholding access. Also not considered an emergency was a case in which a third party with no custody claim was keeping a child from its parents — even though doing so could be considered “interference with the custody of a child,” a felony under Pennsylvania law.
Some of those cases would qualify for expedited hearings, lawyers said. But it can take six or eight weeks to get an expedited date — and, because they’re generally very brief hearings without time for full testimony, the orders made there are only temporary.
In cases like Novak’s, expedited hearings aren’t much help. Hers is scheduled for Aug. 29, a full month after the scheduled closing on her house and two days after her daughter was to start at her new school. Even if she does follow through with the hearing and get permission to relocate temporarily, she might be forced to move back to Philadelphia at her full hearing in March.
Pearlstein said that’s happened before, sometimes in the case of clients fleeing domestic violence or homelessness.
“Their option is to give the child to the other parent in the interim, or come back and be homeless and figure out what to do,” she said.
In other cases, the delays effectively mean parents never get to argue their case.
Lawyer Ann Funge said that was the case for a client of hers: His ex had moved with their kids to Bucks County, even though it meant he could only see them every other weekend, instead of every day.
After a year waiting to see a judge, he decided fighting was no longer in the best interest of his children.
“They were already taken away from their school, away from their friends, and they’ve reestablished themselves someplace else,” Funge said.
Further bogging down the system, lawyers say, is the way in which some judges manage their courtrooms.
Diana Pivenshteyn, a mother of two from Somerton, first appeared in Family Court in March 2017 in a custody dispute with her estranged husband. That hearing was continued to November. After the judge had to move on to other matters, she gave a new date: this coming August. To this day, no permanent custody order has been put in place for her daughters, who are 2 and 7.
Pivenshteyn said she’s borrowed thousands of dollars to pay for representation for these ongoing court dates.
“This is my nightmare for two years,” she said.
‘Hard to fix a broken system’
Court administrators and lawyers agree that filling the vacancies would be an important first step.
“But it’s not just about the vacancies. There are other underlying problems,” said Watson, the lawyer with Berner Klaw & Watson. “It is very hard to fix a broken system when you are dealing with so many people. I get that.”
She and others said there’s a need for more staff at all levels, for an emergency-hearing system that addresses what they say are often real, emergent crises, but also for a more thoughtful structuring of the courthouse. (In the bigger picture, she said, it also underscores the need for merit-based selection of judges.)
For example, although state rules outline a “one family, one judge” policy, in Philadelphia, cases frequently bounce between courtrooms. That means a judge may be reluctant to make a decision stepping on another’s toes, or he may have to tread ground already covered at previous hearings. It also means a parent who doesn’t like a judge’s decision can simply file a new petition for custody and hope for a different judge.
“One of the problems is repeat filings, and the court has taken no action to reduce those,” lawyer Lawrence Abel said.
O’Rourke, the spokesperson for the court, said the court is also building a custody mediation center at the courthouse to provide affordable access to mediation and, hopefully, resolve more disputes without a judge.
Watson said that, given the outsize effects of stress and anxiety on a child’s developing brain, it’s an urgent problem.
“You can think of the ways a child would be impacted by not knowing, ‘Where am I going to live?’ ” she said. “If there is any case that should be decided quickly, it’s custody.”