Episode Transcript
[00:00:00] Speaker A: Imagine a justice system built on rigorous evidence, not gut instincts or educated guesses about what works and what doesn't.
More people could access the civil justice they deserve.
The criminal justice system could be smaller, more effective, and more humane.
The Access to Justice Lab here at Harvard Law School is producing that needed evidence, and this podcast is about the challenge of transforming law into an evidence based field.
I'm your host, Jim Griner, and this is Proof Over Precedent.
This week we're bringing you a student
[00:00:36] Speaker B: voice hello everyone and welcome back to the Proof Over Precedent podcast. My name is Matthew Homan and I will be your HLS student host for today's episode.
Today's episode features my recent interview with Chief Judge Wilson of the New York Court of Appeals, in which we discuss the challenges currently facing litigants in New York Family Court, the topic of his 2026 State of the Judiciary address.
The annual address has been a feature of the New York judiciary's public outreach since 1998 and historically has been used as an opportunity to highlight the accomplishments of state courts over the previous year. Chief Judge Wilson took a very different approach this year and instead used the address as an opportunity to shed light on the ways in which litigants underlying struggles with poverty arise in family court proceedings. In addition to his own remarks, Chief Judge Wilson invited guest speakers who offered powerful testimonials about their own experiences litigating in family court as parents or children.
I encourage everybody to check out his full remarks, which can be found on YouTube.
Over the course of our conversation, Chief Judge Wilson and I explored the current State of New York Family Court and his ideas for improvements around empowering family court judges to be problem solvers and leveraging the legislative and executive branches to make a difference for families. His Honor is bringing a lot of energy and creativity to these topics, and I hope you will find his perspectives to be enlightening. Here's the interview.
Jose Wilson, welcome to the podcast.
[00:01:51] Speaker C: Thank you so much for taking the time to sit down with me today.
[00:01:54] Speaker D: Truly a pleasure. Thank you.
[00:01:55] Speaker C: Yeah, it says, truly an honor to have you here.
[00:01:57] Speaker B: So, to kick us off, I'm wondering
[00:01:59] Speaker C: if you could speak a little bit about what initially led to your interest in New York family courts and some of the current circumstances that are going on there.
[00:02:07] Speaker D: Well, I guess I would say that my interest in New York Family court started when I became a judge, not when I became chief judge.
And, you know, partly because we get appeals, we get both appeals and motions for leave to appeal in family court cases. And I had never appeared in A family court. In my 30 years of practice, I didn't know anything really about family law other than the worst grade I got in law school was in a freshman year elective, first year elective in family law taught by Martha Minow. It was actually, I believe, the first course she taught at Harvard. And I, when I became a judge, I actually ran into her in the. At the Harvard Club, in the dining room and said to her, you know, that she congratulated on becoming judge. And I said, you know, I got the worst grade in law school from un Family law. That didn't have a whole lot to do. I think with my interest in family law or, you know, learning about family courts, it was more that as I was a judge, I then really had to learn about other areas. But one other thing, and I had mentioned this in my state, the judiciary remarks that did affect me was that when I had applied in the course of applying to be a judge, I think it was on maybe the third iteration, Chief Judge Kay, who was then not on the court, but was in charge of the nominating commission, had made me promise that if I became chief judge, I would, you know, take care of family court and then make it my first priority. And we had a more substantive discussion about that, actually, where she was explaining what some of the problems were and why it was important to focus on that. And so even as an associate judge on the court, I was trying to pay attention when family court cases either leaves motions for legal appeal or the cases themselves came to us because it's an area that, you know, when you're dealing with families and children, it's very complicated. Not so much legally complicated, but, you know, the judgments about what to do, whether to remove a child, not remove a child, provide some sort of support, provide a plan, what information you're getting from Child Protective Services.
And the parents are sometimes at loggerheads, sometimes separately represented. Often separately represented. The children may also be separately represented. There are several children. They each have a lawyer. And it's complicated in that sense. And also because it was an area I was not familiar with, I really had to learn a lot. So I think all that combination of things, when I became chief judge, I was then reminded also of my prose at Chief Judge K. And then wanted to sort of focus on that immediately.
[00:04:30] Speaker C: Wow. I think Professor Minna would be proud with the strides you've made. I think so. Kind of turning to some of those underlying challenges.
[00:04:36] Speaker D: I didn't say I didn't deserve a great.
No, you did not.
[00:04:40] Speaker C: Turning to some of those underlying challenges that you see families and children bringing
[00:04:44] Speaker B: to family courts, I was particularly struck
[00:04:46] Speaker C: by some of those testimonials that your guests gave as part of your remarks. I'm curious if you might just share a little bit some of these common underlying issues you see arising.
[00:04:57] Speaker D: So when I think, at least about when I think about family court, I'm not really thinking about families that don't have children, because if their families don't have children, they wind up because of a domestic dispute or something like that. They wind up either in criminal court or they wind up in matrimonial court. They're not really in family court. So when I think of family court, I am thinking of, you know, families that have a child or children.
And the people that I'm most concerned about protecting and caring for in those situations are the children.
I think simply because they are children, but also, you know, because they are children.
There is much more of ability to affect their lives, for good or bad, depending on what happens to them. And what happens to them is not just what happens to them in family court or even as a result of family court, but what has happened to them up to that point, how some of those things could be different and might even avoid them, the family needing to be in family court.
And I am trying, not just with the family courts, but really with all of our courts.
And this has sort of been a theme that's run through all three so far of my state of the judiciary addresses is to make courts think of themselves as problem solvers rather than just adjudicators of wrong or right. Which is if you just adjudicating wrong or right, you're thinking about the past.
If you're trying to solve a problem, you're paying attention to the past, but you're thinking about the present and the future. And I really want to shift the paradigm of the way our courts think about things generally every kind of case that comes before them.
But, you know, with regard to what we're discussing today, family court is how to solve these problems. And almost peculiarly, in the case of family court, or maybe it's not peculiar, but it's more important, the state's ability and willingness to provide some resources to families who are in distress before they get to the point where they get pulled into family court, I think can pay much greater dividends than in other areas.
And so one of the things, one of the messages I think that I've been trying to deliver is, look, the state needs to do more for families before they get to family court.
Once they're in family court, the state and the courts need to do more to provide them the kind of supports that they're missing. And once they leave family court, the state and the family courts need to be able to have resources to divert them to or to send them to that can help provide the things that have been missing that can help make them a healthy family.
[00:07:31] Speaker C: What kinds of resources do you see in place right now? And, like, where do you see areas for growth as far as, like, family courts?
[00:07:37] Speaker D: Yes. So as regards family courts specifically, I can give you a bunch of different examples. For example, something that will make a difference in some cases to a family is can there be supervised visitation?
And can the supervised visitation be at a place that is family friendly, that exists in some places to some degree in the state and in other places is really not very available?
There are also challenges. You know, if you think about New York City, for example, it's pretty easy to get around here. I mean, yeah, to get from the farthest point in Brooklyn to the farthest point in the Bronx could take you a while on public transportation, but you can do it.
But if you're in Cayuga county, there's no public transportation. The county is huge geographically.
And you may not have a car and there may not be a bus.
So when you are trying to have a supervised visit or in the foster family, temporary placement is. Or even the agency, if the person's at an agency institution is far away, how do you have that supervised visit? A different related kind of issue is exchanges. So when parents have been given joint custody and there's supposed to be an exchange of the child to have a safe place that that can occur, instead of, you know, they're meeting at some random place and they can get into an altercation, there's nobody there around. Sure. I mean, there's some families where the two, you know, separated parents get along fine. There's some where they don't, but they don't complain about it. And there's others where they get along miserably. And, you know, for those at least, you need to have some place with some person that is safe for the child, that doesn't traumatize the child by having these blowups when there's a transfer. And so in some places those resources are available. In some places they're not. There was a provider that the city was of New York was funding, I won't remember the name of it, and about a year ago, they eliminated the funding for that provider. So it no longer can provide that kind of service. For in that case it was supervised visitation.
So there are resources like that. There are also mental health resources. Now those, again, tend to be more available and more accessible to people in New York City and perhaps in some of the other cities than they are in rural areas of the state.
So it's those kinds of supports. Just to give you some examples of things where it would be great for family court to have the ability to know that there are those providers. Because the courts are not social workers, the courts aren't psychiatrists or psychologists. And they really, you know, can you tell parties that they've got to come to court when they're having their supervised visit?
Maybe you could do that if there's a court that's got some space for that. But you still have to have somebody supervising to visit. And the courts don't really have the personnel to do that. You know, could we ask for and budget for social workers on staff who would handle that?
Perhaps that doesn't solve the geography problems. What you see in a lot of family court cases is that the protective services agency has given one parent or both parents, you know, bus passes or things like that to get different places. Sometimes that's feasible, but other times, you know, a parent is working and the visitation time and the transit schedules don't really allow for the visitation to happen.
And there need to be a better way to facilitate that if we're really thinking that we're the objective. Because what you'll see in look at family court cases, almost always the initial objective is parental unification is family unification. And it's when that doesn't work that then the objective will change. But even when there's been a lot of problems along the way, it takes a long time before the courts then say we're changing the objective. It's no longer family reunification.
But if we're serious about that, then we really need to provide the resources that would allow people to be able to take the steps that are required and to recognize the obstacles in their own lives.
That, you know, whether it's a job that is inflexible, that you have to be at work at this time, or the shifts vary, different days, and you can't, you know, change that. And looking for a different job that is usually not a very high paying job that, you know, in a community that maybe doesn't have a lot of those available is a challenge.
[00:11:53] Speaker C: So to circle back on something that you said about judges as problem solvers.
[00:11:57] Speaker D: Yep.
[00:11:57] Speaker C: I'm curious how you see that actually being deployed in the courtroom, what kinds of reactions you're getting from judges on that kind of, you know, reimagined framework.
[00:12:06] Speaker D: So I think, and, you know, I, I only can observe what I can observe and be told that I'm told. And, you know, the, the other thing is a little bit of a side, but I think anybody who is sort of nominally in charge of things, or maybe even actually in charge of things, and there's a lot of people working for that person, the, the. Or even working with that person or working in that person's institution at a different level. The tendency, I think, of people is to say nice things to the person who's in charge of. And so I always take compliments and things are going great, and I really love what you said and those sorts of things. Or this is, you know, morale is great, or that's. I take that all with a grain of salt. But I would say that uniformly when judges have. Have said something to me about the idea of, of being problem solvers, it's always been positive. No judge in the system. And I've gotten hundreds of judges who at one time or another have said that to me. No judge has ever come up to me and said, this is a stupid idea, or I really don't understand how I can be a problem solver or anything sort of that.
And I do. You know, we do have courts, and we have expanded some of them that we think of as, you know, some of them are alternative to incarceration courts, some are drug treatment courts, some are mental health treatment courts, where it is a very different model. And if you walk in, for example, to the drug treatment court in the Bronx, you'll see that there are people there who have addiction issues, and they are given a program and they meet with a social worker and they're in first and outpatient, and they're reporting every week, sometimes remotely, to the court, how they're doing.
And they progress through that. But then very frequently they use and there's a setback. And what you see is the court doesn't then say, okay, now I'm going to. If the people are going to prosecute you, you're going to go to prison because you blew it. They get chance after chance after chance because the recognition is that the progress is never a straight line. It's got all these blips in it. And this is a couple steps backwards, and then you move forward. And that is a way of trying to solve a problem rather than adjudicating the fact that what Actually got this person into the drug treatment court was they stole something to support a habit.
So we've had problem solving courts that are denominated that way really for better than two decades. We've expanded them and we continue to expand them, and we're hoping that we can expand them further and they produce good results.
So for the judges who aren't in a court that is denominated as a problem solving court, which is actually most of our judges are not in courts that are denominated that way, I think the other thing that helps them is they can see that there are their colleagues in those courts who are doing something like that.
And my assumption, I guess, is this.
There's probably some judges who think that this idea is just crazy. And so no matter what I say, they're not really going to do anything. That's okay. But I think that there are then two other categories of judges. There are judges who have been doing this in some form or another and are encouraged to do this and will do more of it. And there are judges who, another group of judges, which I think may be the largest group of judges, who have never done this and thought it would be something that the court administration would disapprove.
But now I've heard over and over the court administration really approves it. Not just me, but all the deputy chief administrative judges, the chief administrative judge, the supervising judges, the administrative judges.
And they now feel like, you know, this is an okay thing to do. I'm not going to get chewed out for doing it. And so there's more of that spreading through the system.
[00:15:39] Speaker C: That makes a lot of sense. So kind of still on the same topic, you know, given that Proof Over Precedent podcast has academic audience, I'm curious if there's any areas where you would like to have a greater understanding or you imagine problem solving could be better informed. Just areas where you still have some, you know, burning unanswered questions here.
[00:15:58] Speaker D: Well, also, I guess the, the coincidentally, I suppose the name of the podcast fits very well with the idea of problem solving. Right? We're sort of not really thinking about precedent so much. In the terms of precedent is the star of science as it is the past.
And what we're thinking about is proof. And a lot of the problem solving courts that are denominated that way are evidence based.
But to answer your question, yes, there are a lot of things and they tend to be more evidence.
Where can we learn more evidence for? I mean, I suppose we should stick to family court. Purpose of this.
What are successful Programs for family court. So in my state judiciary address, there was an example of a program that is new and is successful. It's an intensive program. It's the one that the young woman who had her video instead, she, you know, she's too, I think caught up in the recency of her mother's passing and just the whole circumstances of her life to, to testify live. But she came live, but then had the video shown. She was in a, in a newish program that involved really sort of one on one work with a social worker over a very extended period of time. And that program has had great results. Now that's expensive, but my proposition is that's less expensive than the social consequences of not helping that person.
So testing that in more and that's, that is the program is actually not a program that originated in New York, it's a program that originated elsewhere. And we have implemented it here as a test.
But you know, we can collect a lot more data around that. We can try with different populations, try varying in different ways. It's always sort of can we try something new? Can we research it? Can we look at the proof and see if that is actually going to serve us better than just relying on precedent?
[00:17:49] Speaker C: That makes a lot of sense. So kind of looking at sort of long run change, where do you see the judiciary's role in interacting with the other branches of government to really affect change on a more deeper systemic level? How does that kind of long term
[00:18:02] Speaker D: vision look for you? So this was kind of an interesting thing that happened when I became chief is I said that what we wanted to do was really to be partners with the other branches of government, not adversaries to them. And this surfaced in a couple different ways. And some of the pushback was, well, but what about the independence of the judiciary? And I said that those two things are not incompatible. That is, we can be independent. The other branches should understand that we are independent when what we are doing is deciding cases. But when we are advocating for changes in legislation, advocating for increased funding for certain sort of things, and even in the case of family court, let's say advocating that quite apart from the court system, the state ought to be doing something on the front end. So one of the things that I mentioned, which I think is a good idea, but it doesn't really directly involve the courts, is providing essentially childcare for 2 year olds and 3 year olds for free. Right. What's that going to do?
Why do I care about that?
I care about that because there are families who maybe have One parent, maybe the parent works, maybe the parent has problem of the parent's own and you know, is not a horrible parent, is not, you know, generally going to be dangerous or threatening to the development of the child, but it's going to reach points in the day, which everybody who's ever had kids does. When you're just frustrated with your kid and you know, if you don't have this, if you don't have some other support, you know, I remember when my dad would get really angry. Sometimes what you do is get in the car and drive away for a couple hours till you cool down. But my mom was there, right? But if you don't have that, then what happens? You can't leave the kids. If you leave the kids, you're gonna get accused of neglecting them. You know, you hit a kid or something like that, that's a real problem. But it could just be because you're stressed, you've got no other outlet.
So one of the things that sort of universal free care for 2 year olds and 3 year olds does is make sure those kids are in a safe environment, that they've got constructive educational opportunities and that the parents get a break.
Because believe it or not, parents need a break from their kids from time to time. It's just, it's all consuming. If you're the only one, it's very difficult thing to do. Some people can do it, but everybody can.
So, you know, that's why I care about it, is because I think that providing that will mean that there are fewer families who are going to be called out and dragged into the system, into the family court system. And you know, then there's a whole ripple effect from that. If that's the case, then not only are those kids better off, but with the reduced volume of cases, both the caseworkers from child Protective Services and the courts and all the ancillary providers with different kinds of services for families will have a smaller volume to deal with, can spend more time and care instead of feeling stressed or rushed on those matters. And those will benefit the people who still need the family courts and need those other supports. Because you've paired out some population that can be better served by providing something else
[00:21:02] Speaker C: that makes sense. So kind of to close us off, you know, we're running out of time here, but I'm curious what kinds of reactions you've had to your speech over the last, I guess, two weeks and change at this point.
[00:21:12] Speaker D: Oh, very positive. You know, this is great. Glad you did this. You know, so I should Say what the state of the judiciary has always traditionally been is the chief judge gets up and recites a bunch of numbers and says how good things are going and then also identifies some priorities for the next year.
I didn't want to do that. I really thought it's more important to bring in people who have real experience as litigants in the system, defendants or people went to a treatment court or so on in this case this year, family court. And I've changed my focus each year to a different court because I think that helps better inform everybody about what really is happening in the courts than just a bunch of numbers. And as I said, I think a couple of about six years ago, if you want the numbers, they're in a book and we publish it every year and you can read that. So the reaction, I think, has been always, really, this is innovative. This is great. We're really encouraged to hear it. The family court judges, I think, have been thrilled that this was their year that they get spotlighted.
And I'm missing. I have a conflict that I can't go to their annual conference, but I'm going to go to the board meeting of Family Court Judges Association. I'll get a firsthand reaction from them, I think, in April.
[00:22:23] Speaker C: That's great.
[00:22:23] Speaker D: So it's been, you know, it's been, it's been positive. The challenge is next year to think what the. What court I'm moving to or situation I'm moving to and keep. Keep sort of rolling through this because, you know, I think the best proof to say it that way is the people who go who we serve. That's where it comes from.
[00:22:40] Speaker C: That's great. Well, thank you so much for taking the time. It's truly been an honor. Really appreciate it.
[00:22:44] Speaker D: Glad to do it. Thank you.
[00:22:46] Speaker A: Proof Over Precedent is a production of the Access to Justice Lab at Harvard Law School.
Views expressed in student podcasts are not necessarily those of the A J Lab.
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[00:23:12] Speaker E: There's the high profile ones you described Bernie Madoff.
[00:23:15] Speaker D: But is that usually how civil forfeiture
[00:23:17] Speaker E: is used by police departments in America? Definitely not, I imagine also, like you say, that the piracy as an issue is something that we deal with less than countries were dealing with a few hundred years ago.
And what it looks like today is a lot of small dollar forfeitures. The average value of a civil forfeiture of currency in the US is below $1,300, and in some states it's as low as in the $300. And we're seeing most civil forfeitures today take place related to small drug crimes and DUIs.
