Jane Spinak’s new book advocates progressively “deconstructing” Family Court: vastly shrinking its scope for intervention and surveillance while developing alternative, nonjudicial supports for families and children. In this excerpt, she argues for radically altering the status quo of child protective services.

The child protection services (CPS) reporting system has become so pervasive that for many people it is child protection: “If you see something, say something.” Everyone knows there’s a child abuse hotline to call. Almost every person who interacts with minor children is now a mandated reporter, and the general public is encouraged to voluntarily report concerns. Many states allow anonymous reporting. 

Millions of families are disrupted by investigations that result from reporting, most of which do not to lead to substantiation that maltreatment occurred or to the provision of services. The U.S. Advisory Board on Child Abuse and Neglect identified this disconnect between the reporting system and protecting children when it wrote in the early 1990s that “it has become far easier to pick up the telephone to report one’s neighbor for child abuse than it is for that neighbor to pick up the telephone and receive help before the abuse happens.” The practice has only grown since then: one in three children and one in two Black children are investigated today by the time they reach eighteen years old.

The current system of reporting is ineffective, expensive, and harmful…. Hotline screeners may not have adequate qualifications or training, their judgment is subject to considerable error, and a decision to investigate a family may be made by a single person. The public is not educated in what to report and makes baseless calls; the practice in every state is to err on the side of overreporting.

Moreover, intentional and false reporting, especially from anonymous callers, is extensive. All this is not only a terrible drain of resources from supports that actually assist families; it can lead to disrupting and harming families even if no further action is taken.

Mandated reporting is not the solution. Ending mandated reporting is an essential step toward creating trust with service providers and an alternative system to assist families. 

Instead of mandated reporters receiving training on how to report, they need training on how to connect that family to assistance. Schools – which are misleadingly considered to be the most reliable reporting source – are the largest category of reporters, but their reports are less likely to be substantiated or result in services being provided. Parents lose trust not only in schools but in all the other mandated reporters like therapists, doctors, and other treatment providers. 

Freed from mandated reporting, the professionals that families interact with can be part of a system of care… For the far smaller voluntary system of reporting that remains, the criteria for what constitutes neglect or abuse must be clearly understood and communicated to any caller. The hotline must also provide those callers with community service alternatives to contact. For those calls that justify further investigation, strict criteria must be followed, including providing parents with a clear understanding of their rights when they are subject to an investigation. 

Reduced reporting will also reduce the negative impact that registries have where millions of parents areisted as having a report substantiated even if this report has not resulted in further agency or court action.

The definition of “child maltreatment” pursuant to the [federal] Child Abuse Prevention and Treatment Act (CAPTA) and incorporated into state law definitions is [also] vastly overinclusive. [Family Court] jurisdiction should be based on defined harms to children: inflicting physical injury; consistently exposing children to conditions that carry substantial risk of physical injury or serious threat to a child’s health; engaging in or exposing a child substantial risk of sexual abuse; and failing to provide essential medical care. These serious harms affect at most between 10–20 percent of the 3.5 million children investigated; only half of the overall cases are later substantiated, and many of the rest may or may not receive additional supervision or services. These serious allegations are the only causes of action that belong in court. 

The vast remainder of families need support, assistance, and services that neither CPS nor the court is able to provide…. What will most effectively close the door to court for children and families is twofold. In the short term are the targeted community-based and voluntary supports and services that prevent family dislocation. The long-term goal is the transformation to a different economic and political system that understands the needs for families to raise children well.

Jane M. Spinak is the Edward Ross Aranow Clinical Professor of Law Emerita at Columbia Law School, where she directed clinical programs in family regulation for 40 years. Spinak also served as the attorney-in-charge of the Juvenile Rights Division of the Legal Aid Society of New York and was the founding chair of the board of the Center for Family Representation. This excerpt of The End of Family Court: How Abolishing the Court Brings Justice to Children and Families is published with her permission and the permission of the publisher, New York University Press. Consistent with the style of Urban Matters, it omits footnotes that appear in the book.

Opening graphic: Upendmovement