PRESS CLIPS ON REFORM:Richard Schwartz is a Daily News columnist.Look out, divorce court
It’s circle-the-wagons time at state matrimonial court. Or that’s the clear impression one gets looking at the membership of a powerful panel that will decide what should be done to mend this bent, if not broken, branch of New York’s judiciary. The problem? Thousands of mothers, fathers and children are victimized by a system that treats them more like cash cows than poor souls eager to get their lives back on track.Yes, breaking up is hard to do. Especially when parents war over custody. Sadly, it’s the immensely sensitive task of deciding which parent gets the children that our divorce courts often perform worst.
The ugly facts involve high-priced lawyers and psychiatrists appointed by judges to assess who should get the children. For these often politically wired professionals, divorce courts, according to Daily News scribes William Sherman and Bob Port, “are a multimillion-dollar feeding trough, enriching them with little scrutiny or oversight.”
Court-assigned shrinks have ordered parents fearful of losing their children to plunk down $20,000 up front before reviewing a family’s case. The lawyers whom judges appoint to represent the kids sometimes charge six figures for a single case.
Resist paying a bill and the judge may slap a lien on your home, or cite you in contempt.
It gets worse. Last year, mothers wailed on the steps of the Brooklyn courthouse when they learned that the judge who had taken their kids away, Gerald Garson, had been charged with fixing divorce cases in exchange for free trips and cigars.
To find solutions, Chief Judge Judith Kaye convened a 32-person “matrimonial commission.” Reasonable enough. But the panel is stacked with judges and lawyers. Got that? The folks in the middle of the mess are supposed to clean it up.
Why not let a few former litigants join the panel?
“It would not be productive to have them on the commission,” said the panel’s chief, Judge Sondra Miller. She will hear complaints from former litigants, but they can’t sit at the grownups’ table. The attitude of this well-regarded but misguided jurist reflects the insular, elitist, arrogant mind-set of the legal establishment. If you’re not in the club, butt out.
Enter Patricia Duff, whose nasty and costly split with billionaire Ronald Perelman grabbed headlines a few years back. Today, Duff is a compelling voice for matrimonial court reform. She’s helping organize scores of city parents who were abused by the system and now hope to reform it. Advice to the legal geniuses: Listen to them.
Here are some of their ideas: Judges must make basic findings of custody within 75 days. End the practice of assigning lawyers to represent kids unless the child is in danger. Impose strict fee caps for court-assigned shrinks and lawyers. Blindly select professionals from prequalified lists so judges can’t tap their cronies and patrons. Set stiff penalties for rule breakers.The goal, says Duff, is to make sure the system works for the families and “isn’t a gravy train for lawyers and psychiatrists.”
Unfortunately, the odds of that happening aren’t good, given the commission’s pro-lawyer bias. Judges and lawyers tend to protect their own.
That’s exactly why the state’s Commission on Judicial Conduct must, by law, have members who are not lawyers. Its rulings on judges charged with wrongdoing are more credible because nonlawyers are involved.
“What sacred principal of law is there that a lay person can’t grasp?” asked one divorce attorney. Common sense says include them, he said. But no one ever accused the legal system of having common sense.
Originally published on October 11, 2004
CUSTODY CHAOS
New York Post
By ALY SUJOOctober 15, 2004 — New York’s twisted divorce courts have become judicial labyrinth for child-custody cases “straight out of Alice in
Wonderland,” angry parents told a packed public hearing in the West Village yesterday.“I found myself for the first and only time in my life in a legal brawl, unable to extricate myself or my child from a fight which I believe was stacked against me,” said Patricia Duff, who shares custody of her daughter, Caleigh, with billionaire Ronald Perelman after a bitter court battle.
“The costs, emotionally and financially, were horrific,” said Duff, who has become an advocate for court reform since her headline-grabbing 1998 child-custody case.
Duff was one of several self-described victims of the system who testified before a 32-person “matrimonial commission” convened at the
Benjamin N. Cardozo School of Law by Chief Judge Judith Kaye.
Kaye wants an overhaul of a fractured and scandal-plagued branch of New York’s judiciary, and sources said she was determined to clean up an archaic system jammed with lengthy custody battles, iffy court-awarded counsel fees, and unenforced orders.
“I spent five long years in litigation, and it was an emotional hell,” Duff told The Post after the hearing.
“The system is archaic and confusing,” said Duff. “Litigants are traumatized and ground down. Custody cases are a nightmare, and the
system is a mess straight out of Alice in Wonderland. I wouldn’t want anyone to go through what my daughter and I went through.”
Judge Judy Sheindlin ‹ a Family Court judge before making it famous as a TV jurist ‹ also called for a clean-up.
“Just because you like children, doesn’t mean you’d make a good family court judge,” she said, earning a standing ovation.
Court sources said the hearings were the first step in a massive overhaul.
[Click to learn more...]
“Reform is definitely needed, and we recognize that,” a source said. “It has to be done, and [Kaye] is committed to making changes.”
Duff said thousands of parents and kids were routinely dragged through a pitiless system that treats broken families with contempt.
While some said Kaye was a reformer, critics have called the “matrimonial commission” a smoke screen.
“It’s the fox guarding the hen house,” said Kim Lurie, a spokeswoman for the National Coalition for Family Justice, an advocacy group monitoring the hearings. Lurie said the commission was made up largely of lawyers and judges.
Other parents said the system was long overdue for a fix.
“The cesspool is overflowing,” said Long Island data processor Charles Lane, 60, who was involved in a long custody battle. “The judges and lawyers are in bed together, and their feet have been brought to the fire.”
Allan Simmons, 49, of Westchester, said the system had become “flooded.”
“I spent $300,000 trying to get my three kids back after the judge gave custody to my wife. I haven’t seen them in years.”
The public hearings came in the wake of the “Brooklyn Club” case, in which Supreme Court Judge Gerald Garson was arrested for allegedly taking gifts to fix divorce cases. His arrest led to a wider investigation into
possible corruption, and his trial is set to start next year.
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Overuse of Forensic Experts Criticized at Matrimonial Panel
DA Pushes for Appointment of NY JudgesNew York Lawyer
January 21, 2005 By Daniel Wise
New York Law Journal Brooklyn District Attorney Charles J. Hynes, who is conducting an investigation into judicial corruption, announced Tuesday that he favors the appointment of judges. In an address at the Down Town Association, Mr. Hynes said he now backs a system for the appointment of judges, similar to that used for the New York Court of Appeals, “to ensure excellence in the state Supreme Court, the premier trial court in the state.” In Tuesday’s address, Mr. Hynes said the level of vitriol in judicial campaigns in other states has led him to endorse the more drastic change, which would completely remove the selection of judges from the elective process. Mr. Hynes said at the Down Town Association that he hopes to continue the probe for another two years after this fall’s election. Ultimately, it will lead to disclosures that so “outrage people” that the “system cannot stand and will have to be changed,” he said. Mr. Hynes also said that a group he helped form a year ago has been pushing the state’s legislative leaders to hold public hearings on the selection of judges. Mr. Hynes’ group, the Coalition for Judicial Justice, is seeking to build public support to change the way judges are selected. It has not taken a position in favor of either primaries or appointments. An overhaul is needed, Mr. Hynes told the members of the Down Town Association, because the convention system creates “an illusion” that voters participate. Challenges to the political leaders’ choices for delegates are unusual, and, Mr. Hynes said, leaders have advised him that they “instruct delegates” about which candidates to vote for. Coalition for Reform The 15-member coalition is an eclectic group that includes long-time supporters of an appointive system, such as Fern Schair, chairwoman of the Fund for Modern Courts; Patricia Duff and Monica Getz, leaders of groups seeking to reform the way matrimonial cases are handled; Douglas Schoen, a lawyer and principal of the political consulting firm Penn Schoen & Berland; and Arthur Eisenberg, legal director of the New York Civil Liberties Union. Thomas A. Reppetto, president of the Citizens Crime Commission, a group supporting more vigorous law enforcement, has participated in the organization’s deliberations but not as a member. The group has several objectives, but to date most of its work has centered on changing the way judges are selected. All the members “agree on the need to get the best people on the bench,” Mr. Reppetto said. Former Appellate Division Justice E. Leo Milonas said the group is seeking to build public support for change by “influencing the movers and shakers in the business and legal communities to take an interest in improving the judiciary.” Mr. Milonas, who formerly sat in the First Department and is now a partner at Pillsbury Winthrop, joined the organization when he was president of the Association of the Bar of the City of New York, which has long supported the appointment of judges. Another member of the coalition, Charles Kolb, head of the Committee for Economic Development, a national organization that counts chief executive officers of major corporations and other prominent individuals among its members, brings considerable clout to the group’s efforts, Mr. Hynes said. Mr. Kolb’s group has agreed to target New York as a state to push for change to an appointive system for judges, Mr. Hynes said. Link to: The full story
Commission Hears the Pain of People in Divorce CourtsBy LESLIE EATON<![endif]> As a state commission investigating practices in New York’s divorce courts held its first public hearing yesterday, the room was awash with anger and anguish.
In a full day of testimony, the commission heard the pain of parents separated from their children, the fear of women forced to spend time with the men who batter them, the frustration of fathers who said their former wives had accused them falsely, and the anxiety of mothers who said they had been punished for raising genuine concerns about their former husbands.
And there is more to come. So many people wanted to speak that the commission is scheduling another hearing in the spring in New York City, in addition to the three others it will hold in other parts of the state.
But at yesterday’s hearing, at Cardozo Law School in Manhattan, some of the harshest criticism of the state’s divorce courts came not from litigants, who have often been dismissed as disgruntled, but from legal insiders.
They described an expensive and slow-moving process in which the wealthy and the poor, many of whom cannot afford lawyers, get different brands of justice. And they criticized court-appointed experts, including the psychologists and psychiatrists who play a big role in courtrooms.
“Judges abdicate their judicial role,” said Judith Sheindlin, the former Family Court judge who is best known for her “Judge Judy” television show. To loud applause, she criticized judges’ reliance on recommendations from law guardians, court-appointed lawyers who represent children in custody cases.
“Some are wonderful, some are mediocre,” she said of law guardians. “And some, since you know I’m an honest girl, can’t make a living doing anything else.”
Law guardians have become controversial in part because their roles are undefined. Some advocate for children’s wishes in divorce cases, but others decide for themselves what is in a child’s “best interests.” They may conduct investigations of the parents, or recommend therapists for children, or tell judges what visiting schedules should be.
Law guardians can also add to the significant expenses of custody cases; in some instances, a family with several children has been assigned (and had to pay for) more than one guardian.
Even those who benefit from the system – law guardians themselves – testified to its flaws at the hearing.
JoAnn Douglas, known for her frequent appointment in battles between wealthy parents – including Rudolph W. Giuliani and Donna Hanover – said standards and roles for law guardians varied from county to county, and even from judge to judge.
“Some believe the law guardian is too powerful, and I agree that should not be the case,” Ms. Douglas said.
Concerns about the appointment of law guardians – and about the fairness of divorce court in general – have been fueled by the arrest last year of Gerald P. Garson, a Brooklyn matrimonial judge charged with taking bribes from a lawyer, Paul Siminovsky. In return for giving the judge thousands of dollars’ worth of drinks, dinners, cigars and cash, Mr. Siminovsky has testified, he received appointments as law guardian as well as advice on winning cases he had before the judge.
The judge has pleaded not guilty and is expected to go to trial next year.
The resulting decline in public confidence in the courts has been galling for Judith S. Kaye, the state’s chief judge, who has a particular interest in improving justice in family and matrimonial matters.
A commission she appointed a decade ago made recommendations that led to a reduction in the time it takes to get divorced, from over two years to under one year, said David Bookstaver, a spokesman for the state court system.
“This is a difficult process,” Mr. Bookstaver said of the barrage of criticism aimed at the system yesterday. “But Judge Kaye is acutely aware of the success of the first matrimonial commission and aware that there are areas that still need serious, thoughtful examination.”
The new commission is led by Justice Sondra Miller of the Appellate Division of State Supreme Court, who described its goals as “reducing and eliminating trauma to parties and to children, avoiding unreasonable expenses and reducing and eliminating delays.”
Many of the 32 members of the commission are judges and lawyers, and several speakers complained about its makeup. Patricia Duff, whose protracted divorce from the billionaire financier Ronald O. Perelman in 1998 prompted her to become an advocate for divorcing parents, called for the panel to add a litigant representative.
Many of the parents who spoke at the hearing were members of organized groups, including the National Coalition for Family Justice. Four women from the Voices of Women Organizing Project, a group that works on behalf of battered women, spoke about the special problems affecting victims of domestic violence.
But some speakers were simply parents who described their own excruciating experiences. One, Ed Berko, said: “I’m not an expert on anything. I know nothing, or next to nothing, about the judicial system.”
But he said the system he encountered did not provide for fair hearings, did not punish perjury and seemed to encourage parties to fight bitterly from the very beginning. “Whoever throws the first blow,” he said, “gets the advantage.”
All text in this message is first amendment protected discussion of the law and procedures of the court. No text in any message may be construed to be legal advice within the meaning of any state unauthorized practice of law by any member. All text in any message is presumed to be first amendment protected freedom of speech on issues of importance to the Civilian population of the United States of America.
By Daniel Wise
New York Law Journal
October 15, 2004
The use of mental health experts – and the reportedly excessive reliance on their testimony by judges – in hotly contested custody battles came under fire from a number of quarters yesterday at the first hearing to be conducted by Chief Judge Judith S. Kaye’s Matrimonial Commission.
The 32-member commission, which Chief Judge Kaye appointed in April, will conduct a top-to-bottom examination of the handling of matrimonial cases with the aim of “eliminating any unreasonable delay and expense,” the commission’s chairwoman, Justice Sondra Miller of the Appellate Division, Second Department, said at the hearing.
Justice Miller said the chief judge is committed to using “every means possible” to effect “any reasonable recommendations made by the commission.”
In a day long-session, the commission heard testimony from 25 witnesses, including TV’s “Judge Judy,” Judith B. Sheindlin, a former Family Court judge; State Senator Thomas K. Duane of Manhattan; and Jo Ann Douglas, who has been appointed law guardian in many high-profile cases, including that of former Mayor Rudolph W. Giuliani and Donna Hanover.
The commission will hold four more days of hearings, ending next spring.
Testifying yesterday at Benjamin N. Cardozo School of Law, Barbara Handschu, the incoming president of the American Academy of Matrimonial Lawyers, said the “rote response” of judges’ ordering forensic examinations of family dynamics can be “overly expensive and at times
yield very limited new information.”
Judges appoint forensic experts to examine family dynamics to help determine a child’s best interest in custody rulings. Forensic experts are drawn from the mental health field, and may be psychiatrists, psychologists or social workers.
Where there is no history of mental illness in a family, Ms. Handschu suggested, there is no need to conduct a forensic exam.
Taking a litigant’s standpoint, attorney Jody R. Krisiloff was highly critical of the quality of forensic experts she has encountered in her divorce case as well as the “heavy reliance” of judges upon the experts’ recommendations. Instead of helping resolve a conflict, forensic experts
“exacerbated the situation by creating further hostilities between the parties,” said Ms. Krisiloff, a class action securities lawyer at Lovell Stewart Halebian.
Some forensic experts are appointed in “case after case,” she complained but there is no record of those appointments.
Nancy Erickson, an attorney with Legal Services for New York City in Brooklyn, spoke on behalf of low-income battered women. She said many experts know “little about domestic violence” and need further training in the area. Some experts will find that battered woman have serious
emotional problems when, in fact, they are only “exhibiting a fear of their abusers,” Ms. Erickson said.
Ms. Erickson also questioned whether forensic experts should make recommendations on which parent should get custody as opposed to rendering judgments on the relative strengths and weaknesses of the parties’ parenting abilities. Law guardians, who are appointed to represent the interests of children in custody disputes, were brought within the ambit of the court system’s rules for fiduciaries in the spring 2003, after a lengthy investigation by another commission appointed by Chief Judge Kaye. But because forensic experts are appointed directly by a judge, they do not come within the scope of the strengthened fiduciary rules. Were they hired by the law guardian, the experts would fall within the rule as “secondary appointees.”Court appointees who fall within the fiduciary rules must be chosen from a list maintained by the Office of Court Administration and can only qualify for that list if they can show compliance with OCA-defined training requirements.
Compensation
Once appointed, they must report any compensation received, which is then made public. Appointees who earn more than $50,000 in a calendar year from their appointments, are disqualified from accepting new appointments the next year.
Law guardians, once appointed, remain involved in a case until it is finished and can command hefty fees. Forensic experts, whose involvement in cases is more “finite,” can nonetheless submit bills of more than $50,000 in hotly contested cases, said Peter Bienstock, a co-chair of the
New York County Lawyers’ Matrimonial Law Section.
Patricia Duff, who was involved in an acrimonious divorce with Revlon magnate Ronald Perelman, said in an interview yesterday that the law guardian assigned to her case charged more than $600,000. She estimated the bill of the forensic expert to be in the $40,000 range. Ms. Duff also testified at the hearing.
Among the many other issues addressed at the hearing was the question of whether New York law should be amended to allow for a no-fault divorce.
Alton L. Abramowitz, who is the head of the New York Chapter of the American Academy of Matrimonial Lawyers, said no-fault divorce will “reduce the cost, delay and trauma to the parties while freeing up judicial resources for the really important aspects of divorce
litigation” – custody and financial issues.
Mr. Abramowitz, who is a partner at Sheresky Aronson & Mayefsky, a 12-lawyer matrimonial firm, said enactment of a no-fault provision is the “cornerstone” of the New York State Bar Association’s legislative agenda for the coming year. His partner, Allen Mayefsky, is a commission member.
Julie Domonkos, the executive director of My Sister’s Place, a program for battered women, said changing the law to allow no-fault divorces would have “serious negative consequences” for poor women by eliminating the “only bargaining chip” many have to negotiate better terms for child
custody and the sharing of marital resources, she said. For similar reasons, she said it is crucial that poor women be afforded lawyers, at state expense, when they are involved in divorce proceedings. Under current law, she said, indigent women are entitled to a lawyer when
their cases involve hearings on custody issues. But because divorce involves a complex set of issues, she said, custody issues are often compromised when other aspects of a divorce are being discussed without a lawyer present.
Ms. Douglas, the law guardian in Mr. Giuliani’s divorce, urged that lawyers appointed as law guardians in fee generating cases be required to accept pro bono assignments in cases where the parties are too poor to afford their fees. The fees that would have been generated by the donated time, she proposed, should be credited against the $50,000 annual ceiling
on fees in the fiduciary rules.
The commission members consist of 12 judges, 18 lawyers, a doctor and a litigation advisor. The absence of lay members prompted complaints from several of the litigants who testified at the hearing.
- Daniel Wise can be reached at dwise@amlaw.com
Friday, October 15, 2004
By HEIDI J. SHRAGER
Staten Island Advance
Divorce in New York State came under fire yesterday, as nearly 30 people testified at a public hearing about the undue cost and trauma families endure when dissolving a marriage.The all-day hearing at the Benjamin Cardozo School of Law in Manhattan was the first of several to be held by a 32-member panel appointed by Chief Judge Judith S. Kaye in June to study and recommend reforms in the state divorce process.
Lawyers, ex-spouses and advocates for battered women, among others, addressed the panel, which is called the “matrimonial commission” and made up mostly of judges and lawyers. Judge Judy Sheindlin, known for her television show, “Judge Judy,” testified, as did Patricia Duff, whose vicious custody battle with Revlon billionaire Ronald Perelman made headlines several years ago.
At times the hearing resembled a heated rally, with the audience applauding loudly and often, and even heckling or letting out the occasional “uh-huh.”
“I thank you for taking on the Herculean task before you of fixing what is a very broken system,” Ms. Duff told the panel. Working with an ever-growing group of lawyers and divorcing mothers, Ms. Duff has become an aggressive advocate for divorce reform since her case
ended in 2001. One recommendation she made to the panel was to require judges to award custody to the primary caregiver within 75 days, in order to assure stability in the child’s life.
CUSTODY CASES
Much of the testimony focused on aspects of custody cases such as visitation and the use of law guardians and forensic evaluators.
“Children’s wishes should be heard,” said Ms. Duff. “They should not be seen through the prism of the law guardian or forensics.”
In her characteristically brusque way, Judge Sheindlin also spoke about the problem of judges relying too much on law guardians’ recommendations when they don’t know the basis for that recommendation. She drew roaring laughter when she said, “So what’s the answer?
We can’t give everybody brains.” Her suggestion was that anytime a law guardian makes a recommendation, he must put on the record the basis of that recommendation, such as the experts to whom he spoke and the evidence he reviewed.
Judge Sheindlin won a standing ovation with her proposal to require any judge seeking election or appointment to first pass a substantive test on family law.
“Just because you like children doesn’t mean you’d make a good family court judge,” she said, adding that judges who don’t adequately know this area of law “really have no right to rule over the rest of people’s lives.”
A 47-year-old father described how he was forbidden to see his daughter unsupervised after his wife falsely accused him of abuse in order to get the upper hand in the divorce. His voice shaking, the former Navy officer and businessman told the panel, “There is no due process. No presumption of innocence, no rules of testimony, no rules of perjury,” to which the audience
erupted in applause. He added that to defend himself against the allegations, he had to pay his lawyer, a law guardian, two therapists and a social worker.
CORRUPT SYSTEM
Searing testimony came from Anthony DeRosa, founder of Alliance for Judicial Justice which is investigating corruption and collusion between judges and lawyers in Brooklyn and Manhattan, and is working with Ms. Duff. Calling the system “an abysmal farce,” DeRosa said,
“We could believe it was inadvertent if not for vast numbers of litigants complaining of injustice.”
The commission chairwoman, Appellate Judge Sondra Miller, interrupted several speakers to ask questions. She asked a child psychiatrist and court-appointed forensic evaluator if there was such a thing as a neutral evaluator, to which he answered yes, but only to a certain degree. She asked a few people where the money might come from to appoint state-funded law
guardians for people who could not afford to pay their fees. She received only blank stares.
Several people touted alternative divorce methods, such as mediation, when a third, neutral party helps spouses reach compromises, and collaborative divorce, when both parties and their lawyers commit to resolving issues outside the court system.
To accommodate the many people who wanted to testify but couldn’t, due to time constraints, Judge Miller said another public hearing will be held in Manhattan in the spring, though the date has not yet been set. People who wish to testify must register at least 10 days in advance. Those who have pending cases cannot testify. Call the commission at (914) 997-1701, or
(914) 997-1705.
Heidi J. Shrager is a news reporter for the Advance.
She may be reached at shrager@siadvance.com In addition you may want to browse additional coverage of court issues:
www.judicialaccountability.org/articles/
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