Erica* was already on edge before the pandemic started. She had recently secured a full stay-away order against her ex, but said he’d already started violating it—calling her late at night, showing up at their child’s school unannounced, sending her threatening texts, according to her recent court petition.
Every time she dropped her kid off for a visit, she said, her ex would try to pick a fight. She’d taken to watching behind her back every time she left the house, fearing he would pop out from behind a garbage can or parked car. “I feel like a criminal,” she said one day last month. “Like I owe someone something, and I’m going to have to pay it back.”
When the lockdown started, Erica’s kid didn’t want to go for the weekly parental visits anymore, and Erica didn’t fight it—she was already afraid of letting her child outside their home in New York City, where the coronavirus was raging uncontrollably. But when her child didn’t show up for a scheduled visit, Erica said, her ex only got more angry. One day, according to court filings, he called her more than 100 times in an hour, threatening to have her arrested. Erica had already made a police report and filed a petition to suspend visitations during lockdown, but no arrest had been made, and the court had not responded.
In an interview last month, an attorney working with Erica worried aloud that the situation would only get worse without a court intervention.
“Even though right now he’s not hitting her, it’s only a matter of time before it escalates to a dangerous situation,” said Anna Maria Diamanti, the director of family and matrimonial practice at women’s legal services provider HerJustice.
She didn’t know how accurate her prediction would turn out to be.
Experts say domestic violence rates in New York have increased at least 30 percent amid the COVID-19 pandemic, owing to a dangerous cocktail of anxiety, economic turmoil, and almost everyone being trapped inside. At the same time, the courts have been hamstrung by staffing cuts and remote-only operations. Understaffed and overburdened, family courts have tried to prioritize orders of protection and other emergency filings. But advocates say cases like Erica’s—ongoing custody and visitation disputes on the verge of becoming emergencies—have been pushed to the sidelines, sometimes with violent results.
“This case is an illustration of pretty much everything we’ve been afraid of in this shutdown,” said Naomi Young, a lawyer at HerJustice who helped Erica with her case. “As a lawyer who works on these cases, this was one of the most frustrating and terrifying experiences I’ve ever had.”
Custody and visitation cases—already one of the most common family law disputes—have taken on a renewed intensity during the pandemic. How should parents with shared custody swap children if it means traveling long distances or using public transportation? Who sets the standard for social distancing or remote learning in the home? In some cases, front-line medical workers have reported partners refusing to let them see their children out of fear they will bring the virus home from the hospital.
These cases are even more fraught for survivors of domestic violence. Jennifer Friedman, legal and policy director for the Bronx and Manhattan at Sanctuary for Families, said abusers often use the courts as a means of torment from afar. Abusers frequently subject their victims to lengthy, expensive, and unnecessary litigation, she said, using their children as a pawn.
“If you’re already engaged in this kind of intensive litigation, under the additional stresses placed by this COVID emergency, you can imagine how challenging a time this is for victims of domestic violence—even those who are already separated from their abuser,” she said.
Currently, however, New York state courts are not open to hearing new custody and visitation cases, except in limited circumstances. Starting in late March, the courts shuttered their physical locations and postponed all scheduled cases on their dockets. A skeleton crew of judges and clerks provided remote-only hearings for emergency issues like orders of protection, juvenile delinquency cases, and emergency child welfare proceedings. On the first day that family courts went virtual, a court spokesperson told the New York Post, the number of requests approved for hearings went from the usual 85 down to 12.
In recent weeks, the courts have resumed hearing some previously scheduled cases. But they are still not taking new petitions for custody and visitation, unless a judge decides it’s an emergency.
New York City courthouses have been closed since mid-March.
Eduardo Munoz/ReutersDomestic violence advocates who spoke with The Daily Beast praised the courts for adapting quickly in an unprecedented situation. But they emphasized that the current regulations are leaving some victims without recourse.
“The courts are still available if you need an order of protection,” Young said. But in cases that don’t rise to that level, or require a different type of filing, “that’s when it becomes really problematic.”
Luba Reife, the deputy director of the Family Law Project at Sanctuary for Families, said she had advised multiple survivors like Erica during the shutdown. She had also spoken with survivors in the opposite situation, in which their abuser had custody of the child when lockdown started and was now refusing to return them. Usually the court would step in to adjudicate these matters, Reife said, but these days that was rarely possible.
The attorney recalled one client whose ex had kept their child from her since March. She sought help from the court, but the case was adjourned until July.
“We’ve been advising a lot of very desperate people who are saying, ‘I’ve only been able to FaceTime with my child at the whim of my ex. What can be done?’” Reife said. “And the answer is, there really is not much that can be done.”
“People are not really able to modify orders easily at this point,” she added. “The only mechanism to really change a current order is to not follow it.”
A spokesperson for the New York State Unified Court System said that, “for the health and safety of all concerned,” the city went from 125 courtrooms to just five citywide virtual courtrooms in March. She also linked to a press release announcing that five more county-specific courtrooms would be added this week to address applications in pending cases that could be resolved with a brief remote appearance.
“We had to draw the line somewhere,” the spokesperson said of which cases the court chose to hear. “Unless it was life or death, it would have to wait.”
Erica was one of the lucky few whose cases were deemed an emergency. A judge heard her petition in late March, just as the courts were closing, and granted her a virtual hearing a few days later. But when Erica tried to call in for the court date, no one answered. When she finally reached someone at the court, they told her the hearing was not on the court schedule. Even when she provided photos of her summons with that day’s date on it, the court employee told Erica there was nothing she could do; she would have to wait for another court date by mail.
But the new court date never came. Instead, one day in late April—almost a month after her original hearing date—Erica’s ex showed up. He found her outside on a grocery run, she said, and beat her so badly she had to call the paramedics.
“I felt like I was going to die,” Erica told The Daily Beast. “I kept getting hit repeatedly, hands closed, on my head. All I remember was the ongoing punches, that I feel like it never ended.”
“He hit me like I was his worst enemy,” she added. “I felt like that was going to be it, that was the end of me.”
Someone eventually called the police, who arrived and took a report, but Erica’s ex has yet to be arrested. A spokesperson for the NYPD said the investigation remains active.
The number of domestic violence reports in New York increased by 15 percent in March and 30 percent in April, according to Gov. Andrew Cuomo. At the same time, the number of domestic violence arrests have plummeted, dropping 43 percent between March and April. Legal advocates who spoke to The Daily Beast said they were also seeing a decrease in calls—either because survivors were too consumed by the current economic crisis to reach out, or because they could not get away from their abuser to do so.
In the absence of more court interventions, advocates worry that a growing number of abusers will take matters into their own hands.
“Any time you have a situation where you’ve lost an opportunity to hold [an abuser] accountable for their behavior, that always runs the risk that the behavior will escalate,” Diamanti said. “The more abusers can get away with, the more they will do.”
“The longer the courts are closed, the more critical and the more difficult and urgent people’s situations are going to get,” Young said. “When the courts do open there’s going to be a flood of people who have been trying to self-help for weeks or months.”
In her weekly public address last week, New York state Chief Judge Janet DiFiore announced the “landmark” reopening of five upstate regions for in-person court operations. But she cautioned that the reopening would be slow and incremental, and would very significantly by region.
“I know you are all anxious for our courts to get back to full operations. I am as well,” she said. “…Let’s be patient and remind ourselves of the careful, incremental way in which we’ve responded effectively to the pandemic, so that we don’t forget, and aren’t tempted, to jump ahead of where we need to be right now.”
In the meantime, attorneys are attempting to advise clients in what Friedman called a “very unstable world with no precedent.” Reife said she’s been telling clients to document every FaceTime and Zoom call between their child and their abuser, in hopes of proving that they did not violate their visitation agreement during the pandemic.
In a video call with survivor advocates last week, a survivor using the pseudonym Jane Doe said she had moved to virtual visits between her abuser and their child during the pandemic. But she said her abuser had accused her of withholding the child, and she was afraid that when the courts reopened, she would be penalized for acting in what she felt was her kid’s best interest.
“I’m really worried that the court does not recognize how much abuse is being extended through the means of visitation, even long after obtaining an order of protection,” she said. “I’m really worried that the court will punish the survivors as a result of COVID-19, and I'm really afraid that when this emergency is over, a lot of survivors who have not been complying with this visitation issue could face serious ramifications.”
Erica, meanwhile, said she is still worried about what might happen with her ex. Just last week, she said, the Administration for Child Services filed an abuse and neglect petition in the case, temporarily suspending visits between the child and father. But in the meantime, she’s still looking behind her back every time she goes out.
“I just bury my head in work because it’s stressful for me, it’s stressful for [my child,] and in reality I don’t know what else to do, because every time I raise my hand for help I get shut down,” she said.
“At the moment we’re just staying home,” she added. “There’s not much I can do.”
*Erica is a pseudonym.
