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"Three
Pony Rule" Invoked to Cut Michael Strahan's By Michael Booth Former New York Giants defensive end Michael Strahan on Tuesday won his appeal from an $18,000-a-month child support obligation imposed in his 2006 divorce, which a New Jersey appellate court found both exorbitant and unfairly apportioned against him. The court, in Strahan v. Strahan, A-3747-06, said that the trial judge failed to make the specific findings of fact necessary to sustain his decision to add $200,000 a year to the $35,984 annual award that the couple's twins girls are due under statutory guidelines. While acknowledging there are unique problems with determining the reasonable needs of children of high-earning families, the court said trial judges should nevertheless avoid overindulgence -- citing the doctrine of In re Patterson, 920 P.2d 450 (Kan. App. 1996), that "no child, no matter how wealthy the parents, needs to be provided [with] more than three ponies." The court also found error in the trial judge's saddling of Strahan with 91 percent of the child support obligation, especially since the judge did not impute any income to Strahan's former wife, Jean, even though she is college-educated and capable of working but has voluntarily chosen not to do so. When the couple began dating in 1994, Michael Strahan was in his second season with the Giants and Jean Strahan was a model and manager for a cosmetics company, earning about $70,000 a year. In 1995, they moved in together and she quit her job. They married July 18, 1999, after signing a prenuptial agreement. Their twin girls were born on Oct. 28, 2004. Divorce proceedings began in early 2005 and a judgment of divorce was entered on July 20, 2006. The couple agreed on joint custody of the girls, with Jean having primary residential custody. An amended judgment, entered in early 2007, ordered equitable distribution and child support. Strahan's motion for reconsideration was turned down. The parties reached an out-of-court settlement on equitable distribution but not on support, which was left for the appeal. The New Jersey appeals court agreed with Strahan that Essex County Superior Court Judge James Convery erred in setting the supplemental child support amount and in ordering him to pay 91 percent of it. Although the parties' experts agreed the Strahans' marital standard of living was approximately $1 million a year, Convery found the "reasonable current standard of living" of Jean Strahan and the two children was $630,000 a year, or $52,500 per month. He imputed no income to her except $28,470 per month in net investment income, leaving her with a monthly $24,030 shortfall. He decided on a yearly support award of $235,984 and charged 91 percent of it to Strahan, who in 2006 earned about $5.87 million. But the appeals court said Convery failed to make a detailed examination of Jean Strahan's child support request and instead merely accepted her recitation of the children's needs. Those "needs," wrote Appellate Division Judge Lorraine Parker, included: the children giving their nanny a 10-day vacation in Jamaica; diamond jewelry for their grandmother; $30,000 yearly for landscaping expenses; $36,000 a year for "equipment and furnishings"; and $3,000 yearly for audio visual equipment. Jean set their clothing needs at $27,000 a year, since the children needed new outfits every time they saw their father and one of them demanded a new purse every time she left the house. "[T]he court made no distinction between what needs were reasonable, given the age of the children, and what simply amounted to a 'fourth pony,'" wrote Parker, who was joined by Judges Rudy Coleman and Thomas Lyons. Parker said it appeared that Jean Strahan was actually the beneficiary of some of the child support payments. While a custodial parent may reap some "incidental benefits" of a wealthy noncustodial parent's child support payments the custodial parent cannot become the primary beneficiary, especially when there is no alimony. The panel also agreed that income should be imputed to Jean Strahan, who decided not to work even though she held two college degrees, a previous career and "employment opportunities [that] were, in all likelihood, enhanced by her celebrity marriage." "There is no question that as a healthy, educated, forty-one year-old, defendant is capable of earning her own income," added Parker, directing that on remand, the trial court should consider all possible sources of Jean Strahan's income -- earned and unearned -- as well as her assets in determining her share of support. The judges also reversed the trial court's order that Michael Strahan take out a $7.5 million disability insurance policy as security for child support, premised on the possibility that injury or sickness could leave him unable to play football. They found the situation no different than that of any other injured or ill divorced parent who is thus left with reduced income, entitling him to seek a modification of child support. They further found the rationale for the insurance moot since Strahan gave up football in June to become a commentator. "Plaintiff's retirement further illustrates the unreasonable requirement of the disability policy," Parker said. Finally, the judges reversed a $13,777 fee award for Jean Strahan's lawyers in connection with Michael Strahan's post-judgment motion for reconsideration, calling it an abuse of discretion. The parties, in their prenuptial agreement, had assumed responsibility for their own counsel fees and Strahan's motion was not made in bad faith, Parker said. The panel rejected Strahan's request that on remand, the case be assigned to another judge, finding a bias against Strahan could not be inferred from Convery's rulings against him. Michael Strahan's lawyer, Angelo Genova, of Livingston, N.J.'s Angelo, Burns & Vernoia: "Mr. Strahan is gratified by the result and feels his legal position has been vindicated. He hopes the matter can be resolved amicably, going forward in the interests of the children." Jean Strahan's lawyer is
likewise optimistic. "This is a period at the end of a long
sentence," says Ellen Marshall, of Greenbaum, Rowe, Smith
& Davis in Roseland, N.J. "We're glad Judge Convery is remaining
with these issues, and we're confident we can resolve of the
remaining issues amicably." "What follows
will disappoint those who hoped to find a gossipy, salacious tale of
a show business marriage gone bad," the "30 Rock" star writes in the
book's introduction, released yesterday at BookExpoAmerica in Los
Angeles. Bill May
Remove 'Loaded' Words By M.C. Moewe Thinking they can stop divorcing parents from fighting in court, state officials want to rewrite the laws to replace loaded terms like "custody" with "parenting plan." To do that, though, they'll strip out guidelines for psychologists that are designed to protect the children. "It dumbs down the criteria," Coral Gables psychologist Jerome Poliacoff said of the proposal to replace American Psychological Association's guidelines with "standards that a reasonable psychologist would use." "Who gets to be the reasonable psychologist?" Poliacoff said. "I think it leaves a lot of room for poor work." The bill, sponsored by Sen. Evelyn Lynn, R-Ormond Beach, passed both the House and Senate last week and is waiting for Gov. Charlie Crist's signature. The bill's supporters say it's designed to lessen the conflict in some of the state's nastiest divorces. "The intent was never to limit the standards," said Elisha Roy, who worked on the bill for four years as a member of the family law section of The Florida Bar. "The goal of the bill is to limit litigation." In contentious divorce cases involving children, psychologists often act as court experts who make recommendations to judges on issues such as where the child should live, how often the other parent sees the child and any mental health treatment the family might need. Currently, psychologists are presumed to be acting in good faith if they follow the American Psychological Association's guidelines when making recommendations. Roy said she believes those are the standards psychologists will continue to follow. "That is how I would interpret it," she said. "I would assume that's what they'd use," added Lynn. Assumptions, though, leave a lot of wiggle room and, without specific guidelines, judges and lawyers working with the psychologists would have a more difficult time determining the quality of the reports, Poliacoff said. Also, bringing a legal case against a psychologist who did a poor job of considering a child's best interest in an evaluation would also be more difficult. Adele Guadalupe, president and a founder of Families Against Court Travesties, said standards for psychologists working as court experts are already difficult to enforce, yet the decisions can put heavy and expensive burdens on families. "You have to dance to the tune of these so-called favored experts and favoritism is constantly rearing its ugly head," said Guadalupe, whose organization for the past four years has sent impartial court watchers to hearings to monitor family court cases. "The poorer parent can't afford to pay all these experts, so usually it's the parent with the money that wins." The thought behind taking out the standards was because those rules contain the word "custody" and the bill is removing those words from the law, said Roy, the Florida Bar representative, who worked with psychologists in helping to write the bill. Taking away terms like "primary custody" and replacing them with the term "parenting plan" will stop parents from fighting, she said: "The whole purpose behind (the bill) is to reduce litigation by the removal of labels that don't mean anything." That the proposed law was vetted by lawyers and psychologists doesn't alleviate Guadalupe's concerns. "These are the very people who stand to profit," said Guadalupe explaining the costs associated with these court experts often run into the thousands of dollars. "It can leave a parent financially decimated." Judge Urges McGreeveys to Settle Now By Angela Delli Santi ELIZABETH — The judge overseeing the contentious divorce between the nation's first openly gay governor and his wife urged the couple to settle their case Tuesday, warning the estranged pair that they don't have the money or emotional fortitude to endure a protracted, public trial.
"You folks do not have the money it's going to take to try this case," Cassidy said. "You don't have it financially, and certainly you don't have the emotional level it's going to take to try this case for many, many months." Cassidy set a series of dates for future hearings, and she set a May 6, 2008, trial date in case the parties fail to mediate their differences. Afterward, Matos McGreevey and her lawyer hurriedly left the courtroom, while McGreevey and his lawyer held a brief news conference downstairs. Asked to comment on the emotional impact of the divorce, McGreevey said, "Divorce for any family is always a difficult process. "I'm just grateful today for the judge's words and that we begin to move the process forward. At some point in our lives this will all be behind us, and we'll continue to move forward," he said. Neither he nor his lawyer, Matthew Piermatti III, would predict whether there would be a settlement. The vast majority of divorce cases are settled before trial, said Union County Court Clerk Sandy Thaler-Gerber. The judge said there were many unsettled issues in McGreevey vs. McGreevey, such as alimony, child support, the value of celebrity and McGreevey's underemployment. The former governor, who has a law degree, this spring announced plans to study for the Episcopal priesthood. While insisting she was not trying to pressure the McGreeveys into settling, the judge did warn of the high financial cost of retaining lawyers and experts who charge by the hour, and of deposing witnesses, which could cost $7,500 per witness, Cassidy said. Noting that each side said it could call 20 or more witnesses, Cassidy said, "That's something you have to factor in if you take this case all the way through, the impact it will have on people you love, you care for, your friends who may not necessarily be part of this whole process." "It's obviously a tremendous emotional cost to you," Cassidy said. "We're not even getting to your daughter now, we're just talking about you." The McGreeveys last squared off in court in late April, when the judge urged the pair to use "common sense" in raising their daughter and cautioned against turning the case into a further public spectacle. Parenting concerns dominated that hearing, with Cassidy warning the McGreeveys not to introduce their 5-year-old to nonage-appropriate activities but said she did not want to micromanage the child's life. She did, however, rule that Jacqueline McGreevey would not be permitted to sleep in the same bed with any adult except her mother or father. That decision came in response to a claim by Dina McGreevey that the child was permitted to climb into bed with her father and his male partner during overnight visits to their Plainfield home. McGreevey stunned the nation when he announced in August 2004 that he was "a gay American." He said then that he was resigning as governor because of a blackmail threat by a former lover, an aide whom McGreevey had put on the state payroll. The man, Golan Cipel, has denied being gay and said McGreevey sexually harassed him. The McGreeveys officially split up when they moved out of the governor's mansion in November 2004. Both have since written books about their lives together and appeared separately on "The Oprah Winfrey Show." McGreevey filed for divorce in February. Matos McGreevey, an executive at Columbus Hospital in Newark, has primary custody of the couple's only child. McGreevey has an older daughter from a previous marriage, which ended in divorce Kooky Marital Colli$ion at Home By Brad Hamilton A bitter divorce between a Broadway star's daughter and a gay architect has taken a shocking turn, with her lawyer calling for a probe of the sale of their East Village town house. The house, valued at $10 million, went for a "fire-sale" $7.5 million after husband Malcolm Kaye drove down the price to reduce Ilsa Kaye's take, according to the wife's attorney, Tom Shanahan. The wife of Malcolm's lawyer, Robert Dobrish, secretly tried to snap it up for $5.5 million, Shanahan said. The wife, Elizabeth Roxas, was told to back off by the judge but re-bid on the property in a scheme backed by the court-appointed receiver, Shanahan said during court proceedings. An outsider eventually bought the house, but the ploy "took food out of the mouths of the children" of Ilsa because the property went for millions less than it was worth, Shanahan said. The case, settled in 2005, gained notoriety after The Post revealed that Dobrish had been business partners with all four court-appointed experts. Plus, after Malcolm Kaye announced during the trial that he was gay, Ilsa Kaye, whose mom, Sharon Gans, starred in "Hair," got custody of their two kids. The first judge, Judith Gische, ordered Ilsa to sell the house within six months and give Malcolm $2.2 million. But Malcolm's side posted the ruling online, devaluing the property, Shanahan said.
A House Divided By Jotham Sederstrom
NY Judge
Finds Seriously Ill Husband By Mark Fass A Queens judge has dismissed the divorce action initiated by a man suffering from emphysema, asbestosis and lung cancer. Mr. A. sought a dissolution of his three-year-old marriage on the grounds of cruel and inhuman treatment. He alleged that his wife's "lack of care, given his ever increasing deteriorating condition, created a situation where continued living together would be inimical to his physical well being," as summarized by Acting Supreme Court Justice Jeffrey D. Lebowitz, in D.A. v. B.E., 15965/04. Mr. A. alleged, for example, that his wife did not accompany him on his weekly doctors' visits and that she refused to move with him to his daughter's house, which allowed easier handicapped access. "[T]he Court is hard pressed to believe that unsympathetic or unsupportive behavior in and of itself is sufficient to establish calculated cruelty so as to grant the divorce on these grounds, especially given the litany of appellate cases which reinforces the duty of the Court in these circumstances to insure that mere incompatibility or unhappiness or so called 'irreconcilable differences' does not justify a divorce under Domestic Relations Law 170(1)," the judge concluded. Chief Judge Asks Legislature to Consider No-Fault Divorce By Patrick D. Healy ALBANY - Chief Judge Judith S. Kaye called on the Legislature on Monday to consider passing a no-fault divorce law, warning that New York's cumbersome process for divorce may be "hurting children" and further embittering estranged couples. Judge Kaye, delivering her annual address on the state of the judiciary, also proposed increasing salaries for New York judges by about 20 percent this year to catch up with pay scales on the federal bench - to $162,100 from $136,700 for state court judges, for instance. Top legislators said after her address that such a salary jump would be difficult to achieve in a tight fiscal year, while the proposal for changes in the divorce law might be complicated if New York political history is any guide. New York is one of a few states without some form of one-step no-fault divorce, partly the result of years of opposition from some women's rights groups, the Catholic Church, legislators, and others who believe that easier divorces and quick settlements might harm one spouse - often women - who have historically earned less money or have not worked outside the home. Yet Judge Kaye, who leads the Court of Appeals and oversees New York's judiciary, argued in her speech that a "fair" compromise should be possible to dissolve marriages that are obviously over, protect the rights of both spouses, and aid victims of domestic violence who may find themselves trapped if their spouses evade fault or refuse to grant a divorce. She also called for appointing more judges to the heavily burdened Family Court system. Judge Kaye also said that "consensus has built" in New York for no-fault divorce - including an endorsement last year from the Women's Bar Association, which reversed its early opposition (and which counts Judge Kaye as a member). "After long and careful reflection," Judge Kaye said, "I, too, have come to see that requiring strict 'fault' grounds may well simply intensify the bitterness between the parties - wasting resources, hurting children, driving residents to other states for a divorce and delaying the inevitable dissolution of the marriage." Several legislators in the audience - including Joseph L. Bruno, the Senate majority leader - said in interviews that they would review Judge Kaye's remarks but did not commit themselves to reforming divorce laws. Todd Alhart, a spokesman for Gov. George E. Pataki, said of the chief judge's proposal, "We would have to review the details of any bill advanced in the Legislature." In calling for higher judicial pay, Judge Kaye said such salary increases were needed for state judges, partly to keep some of them from taking lucrative jobs outside government. The Legislature last approved a pay raise for state judges in 1999, Judge Kaye said, when salaries for the state's Supreme Court justices jumped to $136,700 from $113,000 - in line with the scale for United States District Court judges. Since then, salaries for those federal judges have risen to $162,100, according to New York court data. Judge Kaye also called for a new method to ensure regular pay increases, at least to cover cost of living changes. Mr. Alhart said in response, "We'll have to review the details of her proposal." Newly Divorced Metro Lawyer Says Costly Litigation Futile By Thomas B. Scheffey New Haven trust-and-estate lawyer Marshal D. Gibson makes a good living preparing clients to ride out life’s storms, including marital squalls. Even before his own recent divorce, he suspected that fighting it out in court made no economic sense. Now he has the numbers to back it up. Gibson describes the divorce litigation between him and his ex-wife as "the most expensive effort in futility that I can imagine." In a five-day trial last year, Greenwich’s Gary I. Cohen, whose $625 per hour rate is stratospheric for Connecticut family lawyers, represented Gibson. New Haven Superior Court Judge Richard P. Gilardi nullified the couple’s prenuptial agreement, which was originally designed to protect Barbara Gutman Gibson’’s inherited money when Marshal Gibson was a new lawyer in the mid-1970s. Since then, his income has grown from $20,000 to $484,000 per year. His assets of $2.7 million contrasted with his wife’s $776,413. The couple owned shared interests in separate houses, in trust, in Woodbridge and Madison, and Marshal Gibson lives in a Branford house held as an LLC with his son as the beneficiary. Gilardi awarded the wife $2,250 a week in alimony, a figure that was lower than the alimony initially proposed by a mediator the couple started with, Marshal Gibson said. "The very first number that Gary Cohen and I had for alimony was, in fact, slightly higher than what the judge gave her. They wanted so much more that we offered less," he explained. "I always thought, and my wife thought, you can have a fight or not, and [the amount in controversy is] a difference of about 10 percent," the T&E lawyer added. "It just doesn’’t make sense to have a fight over 10 percent, because you lose that in legal fees. And that’’s exactly what happened." Cohen’s bill was about $100,000, and Mrs. Gibson’s bill from David Welch-Rubin, of New Haven’s Engelman & Welch-Rubin was $54,000. "The end result is that, in legal fees, I could have educated a third child, from elementary school through graduate school, and ended up in the same place," Marshal Gibson said. The judge, Gibson said, never seemed to understand the reasoning behind a clause in a 1994 trust that required Gibson’s wife, but not him, to resign as trustee upon death or divorce. To Gilardi, it appeared to be a disturbing maneuver by the T&E attorney to effectively shrink the marital estate. But to Marshal Gibson, it made sense to insure that the trust proceeds he primarily contributed would be applied to the childrens’ education, even if the marriage soured, he said. "I didn’t want her to say, ‘‘I’m sorry, go educate them yourself, we’ll use this money later.’’ It seemed like an accident waiting to happen," if his wife controlled trust spending after divorce, he maintained. Settlement Reached Marshal Gibson retained New Haven appellate lawyer William F. Gallagher to take an appeal, and in the pre-appeal negotiations, reached a settlement. Gilardi had awarded Barbara Gibson $1.1 million of his $2.3 million pension. The post-divorce negotiation increased Marshal Gibson’s share of his pension by close to $250,000, he said. Gallagher’s fee was approximately $10,000. Some $3 million in Barbara Gibson’s trust assets from her family were not valued at trial, or considered in the asset division. Gilardi declined to value those assets without expert valuation testimony. Barbara Gibson’s father has a lifetime right to, but no plans to draw upon, those trust assets. In Marshal Gibson’s view, the trust assets could and should have been valued. "They were a vested interest," he noted. Although the judge did not include those trusts at trial, they will be an issue for another day. When the proceeds pass to his ex-wife, the fairness of her alimony can be revisited in light of the changed circumstances, Marshal Gibson said. His ex-wife’s lawyer, David Welch-Rubin, disagrees that the litigation was pointless. "We got far, far more -- hundreds of thousands more -- than we would have otherwise," Welch-Rubin said. Cohen, Marshal’s trial lawyer, said he’s rarely seen a case "that could be tried better than it could be settled, if both sides are motivated by informed self-interest." Judge: Divorce Cases Skewed Toward Women By Joe Mahoney One of New York's top judges started tongues wagging after suggesting divorce leaves men with the short end of the stick when it's time to divvy up the dough. In a speech last week, Court of Appeals Judge Robert Smith suggested courts aren't always gender-neutral - and the marriage contract is often skewed in favor of the woman, according to the New York Law Journal. In divorce cases involving working women and stay-at-home husbands, Smith said he suspects men still don't get their fair share. "I read a case where the wife was a dental hygienist and the husband said, 'That's marital property.' The court said, 'You're right, it is marital property. You are getting 7%,'" the Law Journal quoted Smith saying Thursday in a speech to the Family Law Section of the New York State Bar Association. A spokesman for the Court of Appeals said Smith had no additional comments about the controversial speech. "It's not something he wants to comment on further," spokesman Gary Spencer said. Claims of a pro-female tilt ignore the harsh financial realities of divorce, said Marcia Pappas, head of the New York State chapter of the National Organization for Women. "Judge Smith is out of touch with real families," Pappas said. "How he thinks the system favors women is really surprising to me. I'm not sure what he's basing his personal opinions on." But prominent New York divorce lawyer Eleanor Alter, whose clients have included Christie Brinkley and Mia Farrow, hailed Smith for adding some spice to the "discussion and disagreement" over matrimonial law. "It's great that he said
it," Alter said. "If we get to the point where we can only say
what's politically correct, then we're in pretty bad shape."
By Andrew Harris MINEOLA - A well-known Nassau County matrimonial lawyer has lost a motion to withdraw from a case because his client ran out of money. Instead of winning the relief he sought, Dominic A. Barbara of Garden City received a lecture from Justice Anthony J. Falanga of Nassau Supreme Court on the importance of assessing a client's ability to pay before taking a case. "It was incumbent upon moving counsel in this case and . . . is the obligation of all matrimonial attorneys, prior to entering into a retainer agreement with a client, to make an assessment of the fees that will likely be incurred and the income and assets of the parties that will be available to satisfy said fees," Justice Falanga said. If a client cannot pay the anticipated freight, the lawyer should either decline the case outright, or take the case with an acknowledgement that he or she may not be paid in full, the judge said. Mr. Barbara, who is owed $19,000, could not be reached for comment. But his adversary in the case and the matrimonial committee chair of the Nassau County Bar Association both said they agreed with the ruling's sentiment. "Both litigants and the matrimonial bar have an obligation to make these cases more cost effective where the parties have limited means," said attorney Richard Keidel, who is a partner in the Garden City firm of Gassman & Keidel, and chairs the bar association's matrimonial committee. Mr. Barbara represents Stephanie Klein, the defendant in Klein v. Klein, No. 200558-2003. The plaintiff, Lawrence Klein, is represented by Manhattan solo practitioner Jody N. Gerber. "I agree with it wholeheartedly, especially in a case like this where the parties don't have a lot of assets," Mr. Gerber said. Mr. Klein, a plumbing supply salesman, earns about $53,000 a year. Ms. Klein, who has only a high school equivalency diploma, is unemployed. The couple has two teenage daughters and a home purchased in 1990 for $200,000. The motion to withdraw, ironically, was set up by Mr. Barbara's own successful prior motion to dismiss an amended complaint filed by Mr. Gerber on behalf of the husband. Retainer Agreement In denying Mr. Barbara's motion to withdraw, Justice Falanga acknowledged that the retainer agreement with Ms. Klein said that her counsel could withdraw in the event that a bill went unpaid for more than 60 days. Justice Falanga said, however, that even if the retainer provided for such an eventuality, permission to withdraw still resided with the court. Noting that Mr. Barbara had already collected $17,500 from his client and that discovery on her case was nearly complete, he denied the attorney's motion to pull out. Mr. Gerber said that the judge's advisory forces lawyers to tread a "fine line between how to best represent a client and how to stay on budget. Mr. Keidel agreed. "It's a balancing," he said. "You can't make lawyers engage in involuntary servitude" by keeping them in cases when its clear that they won't be paid. "If you're fighting about money and equitable distribution, you have to be reasonable about the means of the parties. You come to a point in a case like this where you say, 'listen, this case doesn't deserve litigation, it deserves to be settled.'" The Klein matter is not over. Mr. Gerber said that he has served Ms. Klein with a new complaint and will move to consolidate a new divorce action with her already pending counter-suit. Gross Injustice: Custody-battle Mom By Bob Port Celinda Donaghy of the Bronx was tucking her baby boy into bed one night when suddenly her husband, a Yonkers firefighter, appeared with two cops and a court order. Without any notice or hearing for her, a judge in Westchester County had awarded her husband temporary custody of the child - plus an order barring her from going near him or their 1-year-old. Now the angry mother is going public with her case, accusing the courts and a judge of gross injustice. "It's mind-boggling," she said yesterday. "I have no idea what's going on." In June, Donaghy's husband, 30-year-old Douglas Donaghy, asked a Westchester judge to give him temporary custody of the boy and a protective order against his wife. Donaghy, a former Rikers Island correction officer, alleged that his wife was mentally ill and abused drugs and alcohol - allegations she says are "completely false." Westchester Supreme Court Justice Denis Donovan gave the firefighter the protective order and temporary custody - solely on the husband's word. Six days later, Westchester Supreme Court Justice Mark Dillon - again with no hearing, no witnesses and no medical opinions to support the firefighter's claims - upheld Donovan's emergency orders. Donaghy's wife has demanded a full hearing on custody, but Dillon has repeatedly postponed it; one is now slated for midJanuary. "Every time she asks for the hearing," said her attorney, Susan Chana Lask, "the judge puts it off." The last time Celinda Donaghy appeared in court, Dillon ordered her handcuffed and thrown in a courthouse cell - to satisfy the second arrest warrant. She was released later that day. "I think he's unfair," she said. "I don't think he takes this matter seriously." Alayne Katz, Douglas Donaghy's lawyer, said his wife is an abusive spouse upset over losing in court. "It's very common for a
court to order an order of protection merely based on the
allegations of one side," Katz said. "Judges have to make hard
decisions about which parent should care for the child." City Bar Supports No-Fault Divorce Mark Fass The Association of the Bar of the City of New York has urged legislators to amend state law to allow "no fault" divorce. "New York alone is stuck in the past when it comes to one of the most important components of our social fabric —— marriage," the group said in a six-page report released by its Committee on Matrimonial Law. New York is the only state that does not allow "marriages to end without one spouse casting blame upon the other and rehashing the often harsh, painful and embarrassing reasons for the divorce," the group said. The committee cites such benefits to no-fault divorce as lowered financial and emotional costs and reductions in incidents of domestic violence. The Women's Bar Association of the State of New York and the New York State Bar Association also support no-fault divorce. The city bar's report is is at www.abcny.org/pdf/report/divorce_memo.pdf.
Ex-wife Taking License By Jeane Macintosh A Long Island woman whose physician ex-husband refused to pony up hundreds of thousands of dollars in support payments has demanded the state suspend his medical license. Margie Horowitz, of Syosset, filed papers that ask state officials to force Dr. Stuart Horowitz, an osteopath in Massapequa, to stop practicing medicine until he pays $196,000 in back support. The bold move — allowed under state law — was blasted by the targeted doc as "vindictive." "It'll never happen," a fuming Dr. Horowitz told The Post. "She can file whatever she wants." Margie's lawyer, Sheldon Martin Krupnick, countered, "It's not vindictive. Dr. Horowitz has shirked his responsibility, refused to pay, and ignored a judge's order that was made more than a year ago. "The law is clear — he did not follow the order, and his license to practice medicine is to be suspended." Late last night, Dr. Horowitz faxed a letter to Krupnick offering to pay $150,000 with the stipulation that efforts would be made to prevent publication of any further news accounts. Krupnick said the offer was not likely to be accepted. Krupnick filed papers Dec. 1 in Nassau County Supreme Court for the suspension. He also notified the Department of Education, which oversees physicians' licenses — and whose Board of Regents is obligated to yank licenses for nonpayment of support. The suspension of a medical license for nonpayment is allowed under the state's Domestic Relations, Education and Family Court laws. After receiving a court order from a judge, the Board of Regents must notify Dr. Horowitz of a hearing, which must be held between 20 and 30 days from the notification date. At the hearing, Dr. Horowitz will be given a chance to prove he's paid his arrears in full; he is not allowed to argue the appropriateness of the payments. If he can't prove he has paid, his license "must be suspended," according to the law. He can't get it back until arrears are paid. Education Department spokesman Tom Dunn said that as of Friday, the office hadn't yet been served by a judge. When it is, he said, "We will put it on a fast track and schedule a hearing, as per the statute." A New Push to Loosen New York's Divorce Law By Leslie Eaton If there was one thing Cathy and Robert Jacob agreed on, their lawyers said recently, it was that their marriage was over. After 26 years, they divorced in January 2003, but Mr. Jacob was unhappy with the financial terms imposed by the court and appealed. Last June, an appellate court reviewed the decision and decided that neither of the Jacobs had shown proper grounds for divorce, an unexpected decision that would be unlikely in other states. And so, four years after they split up, the Jacobs are still married. "There was never even a thought that the court would say, 'A pox on you both,' " said Suzanne K. Bracker, the lawyer for Mr. Jacob. "What people should know is that getting a divorce is not a slam dunk." Especially not in New York. By some measures, the state has the most obstacles to divorce. It is one of a handful that does not allow one spouse to unilaterally end a marriage. It is also one of the few without some form of one-step, no-fault divorce for couples like the Jacobs. There are all sorts of theories about why New York has been so conservative on matters of family law and has held out on this issue. The Catholic Church has objections to easier divorces, and women's groups are concerned about the economic harm to women from inequitable financial settlements. Divorce reformers have spent years focusing on other issues, including distribution of assets, child support and custody and domestic violence. Then there is the generally sclerotic Legislature, where some members still recall the bruising fight over this issue 15 years ago, when the Assembly defeated a no-fault bill. But now, matrimonial lawyers, bar associations and judges are pushing to have the law changed, saying it is archaic and heightens hostilities between spouses, which particularly hurts children. Both the New York State Bar Association and the city bar are backing a legislative change in Albany to add no-fault grounds, and several powerful legislators appear to be receptive. "Even Chile, one of the most Catholic countries in the world, has no-fault divorce now," said Harold A. Mayerson, a Manhattan divorce lawyer and chairman of the committee on matrimonial law at the Association of the Bar of the City of New York. In September, the Women's Bar Association of the State of New York reversed its longtime opposition to no-fault. "We feel that society has changed, that many more women are working today," said Susan W. Kaufman, chairwoman of the group's legislative committee. In New York, irreconcilable differences are not enough to get a divorce. Incompatibility is not enough. An irretrievable breakdown in the marriage is not enough. Mutual consent is not enough: even in an uncontested divorce, someone must take the blame for the marriage's end. Living apart, even for decades, is not enough. One party to a divorce must allege "cruel and inhuman treatment," or adultery, or abandonment - literal or sexual - for a year. A spouse in prison for at least three years is also grounds. The only time a couple does not need grounds to divorce is when they reach a legal agreement to separate - with consensus on all issues, including finances and child custody - and then live apart for a year. But one of them could still contest the divorce by claiming that the other had not lived up to the terms. When the parties do not agree about everything - particularly when they disagree about money, lawyers say - they can and do go to court to contest the grounds in front of a judge or a jury. (Fault is the only issue in which jury trials are allowed, though they are rare.) Some experts say the time, the expense and the emotional costs of having to prove fault leave them shaking their heads in dismay. "I'm hard pressed to think of a reason why we should continue to resist no-fault," said John DeWitt Gregory, a professor of family law at Hofstra University's law school. Critics also note that the states neighboring New York have some form of no-fault, so that a New Yorker who really wants a divorce - and has enough money to move and does not have physical custody of the children - can get one simply by moving to Greenwich, Conn., or Fort Lee, N.J., or Burlington, Vt. While some people battle over the grounds for divorce because they want to stay married for religious reasons or hope to reconcile, many lawyers say that is rare. For the most part, they contend, the party opposing a divorce is trying for a better financial settlement or trying to avoid "equitable distribution" of the couple's assets, which is done only after a divorce is granted. Opponents of so-called unilateral divorce disagree. "To lawyers and judges, of course, the divorce is a foregone conclusion," said Monica Getz, founder of the Coalition for Family Justice, an advocacy and support group based in Irvington, N.Y., for people caught up in the state's matrimonial courts. "For people who are hoping to work things out, it's a very discouraging thing." Opponents of no-fault divorce have traditionally argued that it destabilizes the family and increases divorce rates. But Justin Wolfers, an economist now at the Wharton School at the University of Pennsylvania, found that most of that increase is temporary, and that after a decade or so, divorce rates in states that adopted no-fault started dropping back to almost their original level. His research also shows that after states adopt no-fault divorce, fewer women commit suicide and domestic violence drops sharply, a finding that has been embraced by advocates of no-fault. One reason for the declines, he said in a recent interview, is that women gain bargaining power when they can make a credible threat to leave the marriage. Many judges detest the he-said, she-said of fault trials, and some pressure the couple into agreeing to "constructive abandonment," in which one of the parties testifies that his or her spouse refused to have sex for a year, despite repeated requests, even if it is not true. Constructive abandonment has become popular with spouses, too, some lawyers say, but it does not always succeed. In April, a Supreme Court Justice on Staten Island refused to grant a divorce because the plaintiff, the wife, failed to prove "that she repeatedly requested a resumption of sexual relations." Lawyers say trials on the issue of fault are relatively rare (in the vast majority of divorces, the parties reach a settlement), and denials of divorce because of a failure to prove grounds are even rarer. But there have been at least half a dozen denials in the past 12 months, according to court records and decisions published in the New York Law Journal. And earlier this month, a Manhattan jury could not reach a verdict in a fault trial, so no divorce was granted, said Bernard Clair, the lawyer who represented the party opposing the divorce. At least one judge, Acting Supreme Court Justice Jeffrey Lebowitz, used his denial to send a message to the Legislature. In a decision published in July, he denied a divorce to a teacher who sought to end her three-decade-long marriage on the grounds of cruel and inhumane treatment. The conduct the unnamed woman complained about, which included a threat by her husband to cut up a couch with a chainsaw, simply did not meet the legal requirement for cruelty, which must be so severe that it would be improper for the couple to live together, the judge wrote. But he expressed sympathy for the woman, noted that her situation was not uncommon, and called "upon the Legislature to review the status of fault in this state." A review, at least, may actually happen. Senator John A. DeFrancisco, a Republican from Syracuse, who is chairman of the Judiciary Committee, said he favored holding hearings on fault, and opposes requiring grounds in cases in which both parties want to divorce. "It may be time for New York to get back to reality, rather than legal fiction," he said. The Assembly may hold discussions on the issue in the coming months, said Helene E. Weinstein, a Democratic assemblywoman from Brooklyn who is chairwoman of the judiciary committee. Her concern, she said, is making sure that economic issues are addressed, so that the party with less money "is not put into a worse position because of a lack of bargaining power." While no-fault divorce would appear to help women fleeing abusive marriages, requiring grounds helps those whose abusers want to abandon them with little money, giving them a bargaining chip to argue for a bigger financial settlement or health insurance, said Julie A. Domonkos, executive director of My Sister's Place, a shelter for battered women in Westchester County. As it has in the past, the Catholic Church opposes attempts to add no-fault grounds, said Dennis Poust, director of communications for the New York State Catholic Conference. So would many advocates for father's rights, who say the current system unfairly favors mothers in custody and divorce proceedings. Randall L. Dickinson, a founder of the Coalition of Fathers and Families N.Y., said his group may not be totally opposed to no-fault, but added, "we cannot continue to facilitate or incentivize divorce for one party." And some matrimonial lawyers say they would hate to lose fault. One of them is Jo Ann E. Coughtry, who represented Mrs. Jacob in the case in which the divorce was overturned. The appellate court found that Mr. Jacob could not prove cruelty, and that he had not been gone long enough when the divorce litigation began to constitute abandonment. That leaves the door open for Mrs. Jacob to file for divorce now that the couple has been apart so long, Ms. Coughtry said, but her client actually benefits financially from remaining married. The court awarded her spousal support indefinitely, and she does not have to sell the family home. "She could commence another action for divorce," Ms. Coughtry said, "but why?" Official
Says NY Courts By John Caher ALBANY - A commission undertaking a top-to-bottom review of matrimonial practice ought to also consider a top-to-bottom overhaul of the court structure, New York's social services chief yesterday told a panel appointed by Chief Judge Judith S. Kaye. But Robert Doar, commissioner of the Office of Temporary and Disability Assistance, was likely preaching to the choir. The chief judge and others have been striving for decades to restructure the state's patchwork court system. "It is well documented, in fact it hardly bears repeating, that the New York court system is long overdue for a major restructuring," Mr. Doar told the 32-member Matrimonial Commission. The commission was appointed by Chief Judge Kaye in April to examine every aspect of matrimonial case processing with the aim of making procedures more efficient, fairer and more capable of addressing the best interests of children. "There are specific issues related to the existing court structure that impact separated or divorcing families' efforts to obtain child support, and affect the child support program's ability to assist these families," Mr. Doar testified yesterday at one of the four public hearings scheduled by the commission. He suggested that frequently the left hand does not know what the right hand is doing, in part because Family Court retains exclusive jurisdiction over child support while Supreme Court, with sole jurisdiction over divorces, is often the enforcer of child support orders. "The existence of two entirely different courts to address child support is burdensome and leads to confusion for the families we serve, inconsistencies in the orders established and gaps that impede our program's ability to effectively enforce child support orders on behalf of families," Mr. Doar said. Mr. Doar, who ran the agency's Division of Child Support Enforcement before his promotion last year, said he has witnessed "a sometimes bizarre scheduling system" that can require parents to miss an entire day of work to make a brief court appearance. The commissioner said he has seen "undue delays and a labyrinthine network of rules, some of them so vague that they confound litigants and lawyers alike." He said those problems are exacerbated by the fragmentation of the court system. Court restructuring is the goal of the chief judge, Governor George E. Pataki and others. The idea, which would require a constitutional amendment, arises annually. Next Hearing: Matrimonial Commission -
NYS Office of Court Administration Fathers
Say Courts Biased Against Them By Diane Flagg ALBANY -- Divorce may be becoming more common, but it's not getting any easier, according to parents and lawyers involved in New York's court system. A state judicial commission is looking at ways to streamline the divorce system and getting an earful from unhappy people. "I can't even say it's broken; it's corrupt," said Ken Rohling, a father of two children from Niskayuna, Schenectady, going through a divorce. Rohling said he has spent nearly $65,000 to try to resolve custody issues in his divorce. He said he had to use money that he had saved for college for his kids on lawyers. "The system is geared to make money by crushing the father," Rohling said. Rohling and other fathers say courts are often biased against dads and judges have too much discretion in awarding custody. "No one has a clue what 'the best interest of the child' standard really means; it can simply mean anything anyone wants it to mean," said Randy Dickinson, vice president of the Coalition of Fathers and Families of New York. Dickinson said courts should adopt shared parenting -- in which both parents get to spend an equal amount of time with the kids -- in order to eliminate children as bargaining chips in divorce. It's one of several complaints the Matrimonial Commission appointed by New York's Chief Judge Judith Kaye will hear as it holds public forums throughout the state over the next several months. The commission is to make recommendations on improving the divorce system next fall. "We just want to make the system more user-friendly," said Justice Sondra Miller, chairwoman of the commission. The commission will consider many issues, including no-fault divorce, mediation and the appointment of psychologists and psychiatrists to advise judges on custody decisions. Christian Halbal, a Bronx father of two divorced since 2000, said the court system is too adversarial and costly. Especially expensive is hiring the mental-health experts to make suggestions on custody matters. "The court makes two people hate each other, then robs you both at the same time," Halbal said. He also said courts don't enforce custody laws. He said he complained more than once to a judge that his ex-wife was cutting short his time with his twin 6-year-old boys, and each time the judge just told his ex-wife not to do it again. Some critics also question whether there are enough safeguards to ensure the mental-health experts are unbiased and well-qualified. Along with custody issues, the commission will consider making divorce easier by allowing quicker no-fault divorces. Under current law, couples can apply for a no-fault divorce only after they have lived apart for a year and agree on all the terms of the divorce. Otherwise, one spouse has to cite grounds for the divorce and accuse the other of wrongdoing such as adultery or abandonment. Vincent Stempel, an attorney in the Family Law Section of the American Bar Association, said no-fault divorce in New York is too difficult. "There are too many ways to slow down the process," Stempel said. He said streamlining the process would reduce the costs of divorce and lessen the burden on courts. But Dickinson of the fathers group said the state shouldn't make divorce any easier because marriage is a commitment. Easing no-fault divorce will only help the courts, he said. Encouraging more use of mediation would help people going through divorce, said June Jacobson of the Family and Divorce Mediation Council of New York. Jacobson said many couples come to her for mediation, a process in which an impartial person helps couples decide how to share custody and divide assets, because they have heard how tough the divorce court process can be. She said that even couples who don't reach an agreement in mediation find that it helps their divorce cases go faster. "The court system hasn't put its full weight behind mediation," Jacobson said. "There are no requirements that attorneys tell their clients about the benefits of mediation." The Matrimonial Commission will hold its next meetings in Albany on Nov. 4, in White Plains on Feb. 17 and in Buffalo on April 21. The Cost of Custody By Susan Avery By Leslie Eaton 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." By Heidi J. Shrager 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- Heidi J. Shrager is a news reporter for the Advance. She may be reached at shrager@siadvance.com.
Overuse of Forensic Experts
Criticized at Matrimonial Panel By Aly Sujo New York's twisted divorce courts have become a 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. "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. Plea for New Custody Trial Cites Lawyers' Internet Tie By Leslie Eaton Sitting in the newly renovated splendor of the New York State Appellate Division Courthouse at Madison Square Park, five justices heard lawyers argue the appeal in Kaye v. Kaye, a bitter and hard-fought divorce and custody case. Well-known lawyers involved in custody cases filled some observers' chairs; others were filled by supporters of the mother who filed the appeal, Ilsa Kaye. The debate was over the meaning and significance of the fact that five people involved in the case - the father's lawyer, the children's court-appointed lawyer and three mental-health experts - were listed as members of a team on a divorce-related Web site, SoftSplit.com, now defunct.. That site served as a public billboard and created the appearance of impropriety, said Scott T. Horn, representing Ms. Kaye. Because the relationship was not disclosed, she has asked for a mistrial. While the judges did not come to a decision, they did not seem receptive to Mr. Horn's arguments. They often interrupted him to ask about whether there was more evidence of a true commercial relationship among the lawyers and experts. Justice Peter Tom asked for information about whether the court-appointed psychiatrist had displayed bias or hostility against Ms. Kaye. And Justice Joseph P. Sullivan repeatedly asked when Ms. Kaye and her lawyers had learned of the SoftSplit connection, and why they had not immediately asked for a hearing on the matter, rather than later requesting a mistrial. Mr. Horn said that they learned of it while preparing to cross-examine the psychiatrist and that he did not know why they had not asked for a hearing. Similar questions were raised by Robert Z. Dobrish, the lawyer representing the father in the case, Malcolm Kaye. He also said that the Supreme Court justice presiding over the case had found no evidence of bias by the psychiatrist and had not followed his recommendation on custody. Speaking of Ms. Kaye, Mr. Dobrish said, "This is a disgruntled litigant who wants to find some way to have a new trial that is only going to hurt the children." The third lawyer to speak in the case, John A. Kornfeld, represented the court-appointed law guardian, Pamela M. Sloan. He also argued that delays in concluding the case would not be good for the children, who are now 6 and 10. Mr. Horn responded that the focus had been improperly turned away from the lawyers' behavior and onto the mother's and her lawyers' decisions about asking for a hearing. "I submit to your honors that's a red herring," he said. The Kaye case has become something of a lightning rod for concerns about cronyism swirling around New York's divorce courts for more than a year, after the bribery indictment of Justice Gerald P. Garson, a Brooklyn matrimonial judge. Though the judge has not been convicted, much less tried, several people have pleaded guilty to trying to bribe him. And evidence introduced in two related cases included a surveillance tape showing the judge coaching a favored lawyer on how to win a case. The court system itself is examining the matrimonial system, through a commission that will hold its first public hearing next week. Among the issues it is looking at are the roles played by court-appointed lawyers and mental-health experts. Though litigants are often suspicious even of their own lawyers, Harold A. Mayerson, who leads the committee on matrimonial law for the Association of the Bar of the City of New York, said that clients benefited from professional relationships and friendships among lawyers. Noting that most cases were settled, he said that lawyers who trusted each other and spoke the same language "tend to resolve cases without misunderstandings." But Howard Benjamin, an expert in legal ethics who filed a brief supporting Ms. Kaye in the lower court, said that lawyers were not sensitive enough to appearances that raised questions in the minds of litigants. "I just don't think
For
Arbiters in Custody Battles, By Leslie Eaton When warring parents head to court to fight over child custody in New York, their lawyers often let them in on a little secret: The most powerful person in the process is not the judge. It is not the other parent, not one of the lawyers, not even a child. No, the most important person in determining who gets custody, and on what terms, is frequently a court-appointed forensic evaluator. Forensics, as they are often called, can be psychiatrists, psychologists or social workers; they interview the families and usually make detailed recommendations to judges, right down to who gets the children on Wednesdays and alternate weekends. And the judges usually go along. Forensic reports, which the parents pay for, can cost as much as $40,000 or even more. There are no standards for who can be an evaluator or what should go into an assessment. The court system does not track who gets these lucrative appointments, much less whether evaluators tend to favor fathers or mothers or joint custody. Some lawyers and parents suspect that cronyism plays a big role in some appointments, but given the secrecy surrounding matrimonial cases, that is hard to prove, or disprove. Others say there is nowhere to lodge complaints about mistreatment. And many —— including some forensics —— question whether there is any scientific basis to justify the evaluators' recommendations. In Suffolk County, judges repeatedly appointed a psychologist who was not licensed to practice in New York State. In Manhattan, an evaluator remained on a case even though there was evidence that he had had business dealings with one spouse's lawyer. In Westchester County, an expert charged parents $57,000 for a report that the judge found extremely biased toward the father. Though they have been around for years, court-appointed forensics have become increasingly commonplace —— and controversial —— in New York, which may be the high-conflict custody capital of the nation. But similar debates about custody evaluators are going on across the country, experts say, as divorce rates continue to rise and courts try to cope with the needs of children caught up in a contentious process. "It's boiling over everywhere," said Peter Salem, executive director of the Association of Family and Conciliation Courts, based in Madison, Wis. In Arizona, the governor recently signed a law changing the state's process for investigating complaints about psychologists, in part because of controversy over forensic evaluations. In Louisiana, a committee of the state board governing social workers is considering creating standards for evaluations. And over the last few years, California has adopted a series of court rules that require training for forensics, set standards for evaluations and provide mechanisms for filing grievances against evaluators, said Philip M. Stahl, a psychologist and frequent lecturer on custody evaluations. "It's the only state where the rules are very specific," he said. In New York, forensics' roles are being debated at judicial conferences, psychiatric conventions and impromptu meetings of disgruntled parents. Even the court system has decided to take another look at them, through a commission appointed in February by the state's chief judge. Forensics "have really become arbiters of what happens in a case," Raoul L. Felder, the divorce lawyer, said disapprovingly. "I just think somehow they've seeped into the judicial process." Some people think that is as it should be. "With some exceptions, I didn't try a contested custody case without a forensic assessment," said Philip C. Segal, a former Family Court judge now in private practice. "They were extremely helpful, even critical." Custody cases are difficult and emotionally fraught, he said, adding that judges need help "analyzing the family dynamics, analyzing the parents' respective abilities." Judges must decide custody cases based on the best interest of the child in question, and they can appoint a "neutral expert" whenever they think it would be helpful in making that decision. Some judges ask the parties' lawyers to agree on a forensic or to provide a list of candidates; others simply name an evaluator. Some judges have very specific questions they want addressed; others just call for an evaluation. Many, though not all, want detailed recommendations. The American Psychological Association's guidelines state that while evaluators may determine whether either parent has severe psychological problems, that is not their main goal. Rather, evaluators are supposed to judge the parties' "parenting capacity" and how that fits the psychological needs of the child. Forensics themselves do not agree on how to conduct a proper examination. Some order psychological tests, while others avoid them; some interview baby sitters and teachers, while others do not. In the end, the evaluator gives the court a report that usually makes detailed recommendations about custody arrangements. The parents are not generally given copies; in some cases, they are not even allowed to read the reports. At that point, the parents usually settle, "which we would much prefer, for the parties' sake," said Justice Jacqueline W. Silbermann, the administrative judge for matrimonial matters in New York State. The reports' usefulness in encouraging settlements is one reason judges order them, she said. But what pleases the judges sticks in the craw of some litigants, who say they feel bludgeoned into settling by a report that does not favor them, even when they believe that the report is deeply flawed. Some lawyers contend that the evaluations actually discourage settlements in certain cases because the favored party feels no need to compromise. The only way to challenge a forensic report is to go through a full trial and then cross-examine the evaluator; parties can also hire their own experts to critique the court-appointed forensic, but generally cannot have the family evaluated by someone else. In the meantime, judges are reading evaluators' reports and making decisions based on them, with no way to know whether the observations and conclusions are correct, said William S. Beslow, a prominent matrimonial lawyer in Manhattan. "In eight years, I have not participated in a case with a forensic report that was not substantially erroneous in one of its major conclusions," Mr. Beslow said. "And some are so wrong that they have disastrous consequences for families." Underlying all the concerns about forensic evaluators is the question of whether they are offering the court scientific expertise or unsubstantiated opinions. Jeffrey P. Wittmann, a forensic who has done hundreds of evaluations, says that his colleagues have been giving the courts both, and that they should stick to the scientific evidence. Dr. Wittmann, co-director of the Center for Forensic Psychology in Albany, said he stopped making specific recommendations to judges six years ago, and has urged colleagues to do the same. The reason, he said, is that forensics do not really know, with any degree of certainty, what is in a child's best interest. Little scientific research on the subject exists. Forensics do provide courts with useful information, he said, but drawing conclusions about the child's best interest and making recommendations on custody and on visiting is inappropriate, even unethical. "We have become like mini-judges," he added, "and it's a big mistake." Among psychiatrists and psychologists, Dr. Wittmann's argument is far from the most extreme. William O'Donohue, a psychology professor at the University of Nevada, Reno, is calling for a moratorium on forensic evaluations until more research is done. "Psychologists don't have the knowledge to do what they attempt to do when they do custody evaluations," he said. Many custody decisions, he said, involve not scientific findings, but competing values, like a father's wish that his child excel in sports versus the mother's emphasis on studying. While mental health experts have been debating these issues for several years, the legal world has been slower to recognize them, at least in New York. Enter Timothy M. Tippins, an Albany lawyer who increasingly specializes in cross-examining forensic experts. For almost a year, Mr. Tippins has been writing articles in The New York Law Journal questioning the role and expertise of forensic evaluators in custody cases. He has teamed up with Dr. Wittmann to write a paper titled "Empirical and Ethical Problems With Custody Recommendations: A Call for Clinical Humility and Judicial Vigilance." Among its recommendations is a call for judges to "begin to help the psychology discipline rein in itself" by not demanding or accepting specific custody plans. In March and April, the two presented their arguments to conferences of New York State judges; later this year, they will speak to judges at the state's appellate level. Some judges have welcomed his arguments, Mr. Tippins said. "I think they had on their antennae that something was amiss with these reports." In part as a response to Mr. Tippins, Dr. Alex Weintrob organized a symposium on the scientific basis of expert testimony in matrimonial disputes at the American Psychiatric Association's annual meeting this month in Manhattan. Dr. Weintrob, a well-known child psychiatrist who does evaluations, said later that "there is more science than some people give us credit for." On the other hand, he added, "it is important that we be aware of our limitations," citing as an example the lack of follow-up studies to see if forensics' predictions worked out. "We all know it and are a little embarrassed by it." Even proponents of forensic evaluations are troubled by the secrecy that envelops the business, and the large sums of money that change hands, by order of the court. "It's an industry, and it's unregulated, and it affects precious family rights," said Andrew I. Schepard, director of the Center for Children, Families and the Law at Hofstra University. "It would be lots better if this process were more transparent." The secrecy alone raises questions in the minds of some parents. One woman, a Manhattan financial analyst who spoke on the condition that her name not be used because her court case is continuing, said she had heard from other parents that the evaluator in her case had a history of recommending that custody go to fathers. But, she complained, there is no way to know for sure. In Kaye v. Kaye, an extremely bitter divorce case in Manhattan, the mother discovered that her court-appointed forensic had participated in a business venture with four other people involved in her case, including her ex-husband's lawyer. This gave her grave doubts about how neutral he truly was, she said, speaking on the condition that her first name not appear in print. Judges are required to disclose their ties, she said, "and the same should be true of neutral officers of the court." Justice Judith J. Gische denied the woman's request for a mistrial, ruling that the business —— a limited partnership with a divorce-related Web site called SoftSplit.com, now defunct —— was a for-profit educational venture, and that the lawyers, forensics and others involved were not "in business" together. An appeal of that decision is pending. But the conflict-of-interest allegations about SoftSplit, which were reported by The New York Post last year, are still stirring up such hard feelings among lawyers and forensics that Donald Frank, the lawyer for the mother, refused to discuss the case. Few parents are willing to talk publicly about their experiences for fear of seeing painful family matters aired in the press, or of being dragged by into court by the other parent. They also say they are often dismissed as disgruntled litigants who are angry that the evaluator did not favor them (which, of course, they often are). The American Psychological Association's ethics committee reports that a rising percentage of the complaints it receives involve forensic evaluations. And Dr. Spencer Eth, a member of the ethics committee of the American Psychiatric Association, said local branches of his group also investigate many complaints about forensic evaluations. While such complaints seldom result in a psychiatrist's being suspended or removed from the association, he said, doctors are sometimes reprimanded or educated about the proper way to conduct evaluations. The association takes on this role in part, he said, because state licensing boards tend to be ill-equipped to deal with problems that crop up in psychiatric practices, including some that are almost etiquette issues: a doctor's rudeness, for example, or his failure to return telephone calls. New York's court system does not have a formal mechanism for receiving complaints about forensics, and because they are officers of the court, they cannot be sued for malpractice. The rules governing matrimonial matters are being re-examined by a commission appointed by the state's chief judge, Judith S. Kaye. The commission will examine the role and use of forensic examiners, said Justice Sondra Miller, the appellate division judge who is leading the group. After holding public hearings, she said, it will make recommendations to Judge Kaye, probably in about a year. In the meantime, however, some lawyers say they believe that judges are becoming more skeptical about forensic reports, and may use them a little less. One such lawyer is Norman M. Sheresky, who represented a mother who prevailed in a Manhattan court despite an evaluator's recommendation in favor of the father. The judge tossed out the report's findings as biased, he said. "I think that will happen more and more," Mr. Sheresky said. "I think the judges are getting wise." TUG-OF-LOVE TEMPEST
By Brad Hamilton A group of highly paid experts, whose testimony has helped decide hundreds of child-custody cases in the city, is under investigation over whether they disclosed to the court and clients that they had gone into business together, The Post has learned. Sherrill Spatz, the matrimonial court's inspector general for fiduciary appoint-ments, is looking into whether any conflict-of-interest rules were broken when 37 supposedly independent shrinks and child guardians became affiliated through an Internet venture, yet were sometimes on opposing sides of custody wrangles. The experts under examination include some that made big bucks in custody battles involving former Mayor Rudy Giuliani, Revlon CEO Ron Perelman and publishing queen Judith Regan. The experts were recruited by a company called Soft Split LLC and were promoted on a Web site that offered tips on how to negotiate divorce and custody fights. Some experts also participated in online chat rooms accessed through the site. That business link was never revealed in court when some of the experts were assigned by judges to at least eight known cases, according to a group of parents who pushed for the probe. Members of the parents group suspect many more cases were affected. One member of the group, who asked not to be named, was shocked to discover that her ex-husband's lawyer was part of Soft Split - along with all four experts assigned by the court to her case. The woman's lawyer demanded a conflict-of-interest hearing in February, during which three Soft Split experts admitted that they had hoped to make money from their affiliation with the Web company. Manhattan matrimonial Judge Judith Gische denied the conflict-of-interest motion after three Soft Split members testified they had not, at that point, profited from the venture. But after that hearing, the company's Web site, www.softsplit.com, was closed down. Prior to then, experts listed on the Web site as Soft Split "team members" included some of the biggest names in the divorce business - law guardian Jo Ann Douglas, psychiatrist Stephen Herman and psychologist April Kuchuk, all of whom can get six-figure paychecks from their court appointments. Soft Split was launched in 2000 with half a million dollars in investments from various individuals, according to the company's former lawyer Peter Corrigan. Former real-estate developer Richard Pink, the brains behind Soft Split, could not be contacted for comment. Attempts to contact other Soft Split officials also were unsuccessful. The company is still an active corporation according to the state Department of State. Financial agreements between Soft Split and its experts have not been released, but some Soft Split "team members" interviewed by The Post said they believed that they would eventually make money once the company took off. But the company floundered when the dot-com bubble burst, and it seems Soft Split is not widely known in the legal world. In an interview with The Post last week, Justice Jacqueline Silbermann, the administrative judge for the state's matrimonial courts, said she had never heard of Soft Split even though she officiated at the marriage of high-profile lawyer Robert Dobrisch, who was listed as a Soft Split "team member." After the Gische ruling in February, members of the parents group decided to take their beef to Spatz. Spatz wouldn't comment, but sources familiar with the complaint said her office was hoping more parents would come forward to help with the probe, which began 10 days ago. The parents group has launched a Web site, www.familyjustice.com to find other cases. "The fact that these people are in business together just isn't right," said Beth Cockrell, a financial consultant and member of the parents group.
New York Post -- Critics of New York's scarred matrimonial courts say the Soft Split probe will only scratch the surface of a troubled system. Fee gouging, shoddy work and an insider's mentality have allowed a handful of lawyers and shrinks to cash in on all the top cases, they say. "It's a little club, and these guys wouldn't consider [Soft Split] a conflict [of interest] because they're all in business together anyway," said civil-rights lawyer Richard Emery, whose bitter divorce from actress Lori Singer cost him hundreds of thousands of dollars. Several lawyers of matrimonial and custody fights said judges award huge fees to a select number of experts - often without questioning their bills. "You see the same names over and over," said Howard Benjamin, an expert on legal ethics who has testified that Soft Split members violated conflict-of-interest rules by not revealing that they had formed an online company to market their expertise. Once an expert is assigned to a case, dueling parents are forced to pay his or her fees. Psychiatrists can charge $5,000 a day. Guardians can get $300 an hour. "It's all just ca-ching, ca-ching," said Judith Regan, who spent $100,000 on experts in her divorce and custody fight with ex-husband Robert Kleinschmidt. But child-custody experts say their
work and testimony is vital in allowing judges to decide kids'
futures. |
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A Feast
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