“It is important to share how I know survival is survival and not just a walk through the rain.”
— Audre Lorde
I met Jordan Roberts
in family court arraignments.
Like all my clients, Ms. Roberts did not seek me out. She was not in court voluntarily. The fear of state-induced family separation brought her to Bronx Family Court that morning. She spent most of her day waiting next to numerous other fearful parents. Ms. Roberts could not afford to hire a private attorney. She was left with two options: represent herself or accept the person that the court appoints. In this case, that was me. Ms. Roberts is a Black mother of two girls. She lives in a supportive housing placement with her children. With little family support, Ms. Roberts will later describe her partner, Michael Smith—a Black man—as her biggest source of support. She was never able to say this out loud in the courtroom. Mr. Smith is not the biological father of her daughters but has been in their lives for many years. He does homework with them, picks them up from school, and watches them when Ms. Roberts goes to work. They know him as “dad.”
I guided Ms. Roberts into one of the tiny interview rooms of Bronx Family Court and apologized for the smell and stuffiness of the room as I tried to quickly identify which chair was clean enough for her to sit on. Although this was her first time in family court, as a Bronx resident, she had heard of the Administration for Children’s Services (ACS)
from family, friends, and other community members. She had certainly heard enough to be fearful. One of the first things she asked was: “Will they take my kids?” The truth is, in that moment, I could not know for certain. I did know that on this first day, Ms. Roberts and I only had about ten minutes to speak about her case; ten minutes to speak about her relationship, her children, her life, her story. Then, we got called into the courtroom.
ACS’s story was documented in their petition
to the court. By the time Ms. Roberts and I stepped into the courtroom, the judge had already read the seven pages accusing Ms. Roberts of child neglect. In many ways, Ms. Roberts’s story of victimhood was defined before she ever stepped into the courtroom. Ms. Roberts was accused of failing to protect her children by staying in a relationship with her partner, the man her children call dad. The petition alleged that he punched the wall in their home, causing property damage. ACS stated he had a drinking problem. They said he was a danger to Ms. Roberts and her children. She admitted to me that there had been issues in their relationship, especially after Mr. Smith lost his job, but she did not want to separate from him. She told me there had been ups and downs, but he had never been physically violent with her, and she was not scared of him. Because she was terrified of losing her children, Ms. Roberts agreed to abide by an order of protection on behalf of her children and herself. She did not want to, but she recognized that not agreeing could very well lead to her daughters being placed in stranger foster care.
That day, Ms. Roberts went home with her children, the unsolicited protection of a family court order, and the judge’s instruction that her children’s release depended on her enforcement of the order and her engagement in counseling services for domestic violence victims. Months went by. Ms. Roberts did not want to engage in domestic violence services. She did not identify with the label of a victim, but she went anyway. Shortly before her trial in family court, ACS learned that Ms. Roberts had allowed Mr. Smith into her home on multiple occasions. ACS conducted an emergency removal of the children. Without them, Ms. Roberts’s mental health declined rapidly. Now, ACS wanted her to see a psychiatrist. Seeing her children at supervised agency visits was difficult. She was never allowed to be alone with them. All of their interactions were documented by an ACS worker. Going to agency supervised visits meant having to inevitably separate from her children all over again at the end of each visit.
At the neglect trial in family court, Ms. Roberts had a dual role. She was accused of neglecting her children by failing to protect them from exposure to domestic violence. She was subpoenaed as one of ACS’s witnesses against Mr. Smith. At the same time, she was facing her own allegations for “failure to protect.” Ms. Roberts did not want to testify, but with her daughters in foster care and her goal to get the judge to “give her another chance,” she had few good options. If she did not come to court, her chances of getting her children home were slim. If she testified to what she truly believed—that she was not a victim, that she did not need ACS in her family’s life, and that her children were not in danger—the judge would almost certainly draw the inference that she had no “insight” into the impact that the alleged domestic violence was having on her children. Ms. Roberts took the stand to tell the story of abuse that was expected of her. At this point, she had been told that she was a victim. She had been told that she needed protection. She had been told that she needed to engage in domestic violence counseling to get her children back. She had been told that she needed to gain “insight” into her own abuse. Ms. Roberts looked vulnerable and nervous as a court officer guided her to the witness table. Ms. Roberts did not cry, but when the ACS attorney asked her about her relationship with her partner over and over again, she vomited. She vomited multiple times during the appearance. A court officer handed her a trash can. The judge instructed the ACS attorney to continue his questioning. Ms. Roberts continued to vomit. I asked for a break. The judge denied the request. I wanted to object, but there is no legal objection for making a witness testify about a story that is not theirs. A narrative that feels so uncomfortable in her own body that it makes her stomach turn. It would take almost another year for Ms. Roberts to regain custody of her daughters, even as she did everything the family regulation system asked of her.
A few months before the physical shutdown of family court in New York City, Chelsey Williams, a Black woman and mother in the Bronx, reached out to ACS for help. She had decided to leave her abusive husband. New to the country and without employment, she relied on him for financial support and housing stability. Her outreach led to a family regulation investigation against her husband and her. ACS eventually decided to file a case against both parents in family court, charging them with neglect by “engaging in domestic violence” and refusing to medicate their child, who the school assumed might be on the autism spectrum and might have attention deficit hyperactivity disorder (ADHD).
Ms. Williams had the same conversations with her ACS caseworker repeatedly. She explained that she had never been adamantly against medication for her son. She did, however, want to make an informed decision after a psychiatric evaluation with a qualified provider. She also explained that her husband had failed to include her and their child on his insurance plan. Ms. Williams was genuinely perplexed about her treatment by the family regulation system. She pointed out that she was the one who asked for help. Indeed, when her husband began demeaning and threatening her, Ms. Williams decided to leave, packed a few plastic bags, and entered the New York City shelter system.
Months later, Ms. Williams was able to gain some independence from her husband, but not from the system she now faced due to her own outreach. For almost a year, ACS insisted on conducting announced and unannounced home visits, even at the height of the COVID-19 outbreak in New York City. ACS referred her to domestic violence counseling services and parenting classes and refused to settle her case unless she showed “significant improvement” through these services. Ms. Williams articulated what she needed repeatedly: time to find employment, assistance with finding stable housing, and physical and legal separation from her husband. Attending twice weekly counseling sessions and making herself available for ACS home visits while caring for her child for the majority of the week took much of her time and energy. The pending ACS case made it impossible for her to file for a divorce or finalize a custody agreement. Yet for over a year, ACS insisted on monitoring Ms. Williams and her child, while her husband remained relatively unbothered by ACS.
All throughout the case, Ms. Williams was frustrated with the lack of effort ACS made to provide support outside of mandated counseling sessions. When she articulated her needs, she was redirected to counseling services. When Ms. Williams finally found permanent housing, it was without the help of ACS. Her case was finally dismissed nearly two years after she was charged with neglect. At that point, Ms. Williams had endured countless ACS home visits and numerous hours of generic parenting classes and unwanted domestic violence victims counseling.
* * *
Recent calls to defund the police
were often followed by demands to redirect resources to social service agencies,
such as the family regulation system—more commonly referred to as the “child welfare system.” These calls fail to recognize the entanglement and shared carceral logic of these systems.
Like Professor Dorothy Roberts does, this Essay utilizes the term “family regulation system” to more accurately describe the surveillance apparatus that is known as the “child welfare system.”
This term also better highlights the punitive nature of a system that mirrors and intersects with the criminal legal system.
It has long been established that the family regulation system, much like the criminal legal system, disproportionately impacts poor parents and parents of color.
This Essay uses the term “survivor” to mean a woman who the family regulation system has labeled a “victim” of domestic violence.
The label “survivor”—especially for those who do not self-identify as such—can be problematic and may not capture all the complex experiences of those affected.
At the same time, this Essay intentionally uses the term to challenge the stereotypical narrative that women who become entangled in the family regulation system based on domestic violence allegations are helpless victims
and weak mothers.
Survivors of domestic violence can get drawn into the family regulation system in several different ways. They may become the subject of a neglect case for failing to protect their child from the emotional effects of domestic violence.
In these cases, both the survivor and the alleged abuser face neglect allegations. This was the case for both Ms. Roberts and Ms. Williams. Survivors may also endure family regulation system surveillance when there are no pending allegations against them. Even if Child Protective Services (CPS) decides to file a neglect case only against the alleged abuser, the court has jurisdiction over the child and by extension over the survivor if the child lives with her. During my time as a public defender in the Bronx, I routinely encountered survivors who were never accused of neglect and yet had to endure invasive questioning, unannounced home visits, and in some cases even drug testing and mental health evaluations. In some instances, the domestic violence survivor was not initially charged with neglect and only later became the subject of a family regulation proceeding. Indeed, the complex and punitive nature of family regulation cases is linked to the way proceedings evolve and party roles change once state intervention hangs over a parent’s head.
While current scholarship addresses the punitive nature of mandatory arrests and prosecution for survivors of domestic violence,
it has not fully considered the coercive nature of the family regulation system from a survivor perspective. Scholars like Professor Roberts have stressed that the family regulation system is a coercive surveillance apparatus entrenched in the same carceral logic as the criminal legal system.
This Essay builds on these findings and connects them with epistemic injustice theory to highlight the specific harms that the family regulation system inflicts on survivors of domestic violence. While current scholarship recognizes the punitive nature of the family regulation system, it misses the link between punishment and knowledge production.
Failure to cooperate with the state in family regulation cases with domestic violence allegations can lead to permanent family separation. Ostensibly, the family regulation system is a nonadversarial, rehabilitative system focused on child safety.
For survivors, however, surveillance by the family regulation system can be a silencing process. Indeed, narratives of survival that do not align with narratives of dependence and victimhood are devalued and countered with punishment.
Survivors are at risk of losing their children
if they choose not to comply.
They are similarly at risk if they choose to comply in a way that does not comport with expectations of the family regulation system. In Ms. Roberts’s case for example, her failure to end her relationship with her partner resulted in the removal of her children.
In Ms. Williams’s case, her failure to acknowledge that mandated services were helpful to her—although they were not—resulted in the prolonging of her case, and consequently, her inability to obtain a divorce for many months.
Reports of domestic violence in the home can lead to family separation in a system that blames survivors and coerces them into compliance with the state, ultimately perpetuating “a sense of constraint in institutional interactions.”
This is particularly egregious in cases that only come to CPS’s attention because a survivor reached out for help, as was the case for Ms. Williams.
What Ms. Roberts and Ms. Williams experienced is not rare. This Essay argues that the family regulation system facilitates damaged knowledge production by requiring false or inauthentic victimhood narratives and excluding alternate knowledge.
The family regulation system depends on compelling Black and Brown women to participate in the reproduction of existing knowledge to legitimize its purported goal of child safety.
This Essay draws on the framework of epistemic injustice to explain and dismantle coercive knowledge production within the family regulation system. Professor Miranda Fricker coined the term epistemic injustice.
She theorizes that epistemic injustice is a distinct form of injustice, by which a person is harmed in their “capacity as a knower.”
Societal power structures and stereotypical assumptions inform which knowledge is discredited and subjugated.
The epistemic injustice lens offers insight into the marginalization of Black and Brown voices in punitive family regulation cases, which already disproportionately affect families of color,
ultimately reinforcing the cycle of subjugating marginalized knowledge.
This Essay applies epistemic injustice theory to examine how the vague concept of “insight” is utilized to interrogate and silence survivor knowledge and perpetuate stereotypes.
This Essay argues that the exclusion of alternate knowledge operates not only to legitimize the family regulation system but also to maintain broader hegemonic power structures. The subjugation of Black and Brown women’s alternate victimhood narratives is rooted in their identity as poor, of color, and women.
The epistemic injustice framework informs this Essay’s argument that those directly impacted by the carceral state should be centered in solution-driven conversations. A meaningful intervention in epistemic injustice must go beyond counternarratives. Indeed, there is a growing social movement led by or centered around directly impacted, marginalized parents. For instance, in the Columbia Journal of Race and Law’s June 2021 symposium,
many of the panels and papers were co-led and co-written by women directly impacted by the family regulation system.
Rise, a New York City–based organization focused on preventing unnecessary system involvement and reforming the family regulation system, is led by directly impacted parents.
Survived & Punished is an anti-carceral grassroots organization working to decriminalize survivors of gender-based violence and dismantle the structures that underlie violence.
In the summer of 2020 and early 2021, several parent-led protests called attention to the intersections of the criminal legal and family regulation system.
Part I traces the history of marginalized narratives about domestic violence from an instrument of resistance to an object of coercion. In this Part, this Essay examines victimhood narratives in the criminal legal and family regulation system. Part II utilizes epistemic injustice theory to explain the systematic exclusion of poor women of color’s multifaceted survivor narratives in the family regulation system. This Essay argues that coercive mechanisms discredit and exclude authentic narratives. Part III examines how the vague and subjective concept of “insight” dictates domestic violence narratives and perpetuates epistemic injustice in the family regulation system. Part IV concludes that the findings of Parts I and II dictate the reimagination of support for parents, especially survivors. A meaningful intervention in epistemic injustice should center authentic survivor knowledge and uplift a growing social movement led by directly impacted parents and community members.