TESTIMONY BY BARBARA ELLEN HANDSCHU

BEFORE THE MATRIMONIAL COMMISSION

OCTOBER 14, 2004

To briefly identify myself, I am the President-elect of the American Academy of Matrimonial Lawyers (AAML)and have served as the President of the New York Chapter of the AAML. I am a past Chair of the Family Law Section of the New York State Bar Association. I co-chair the Advanced Family Law Trial Advocacy Program of the American Bar Association and previously co-chaired its Custody Committee. I am a long-standing member of the Family Court Advisory and Rules Committee and co-chair the Custody and Domestic Violence subcommittee. As such, I was instrumental in the enactment of the UCCJEA as well as other custody legislation. I am a founding Diplomate of the American College of Family Trial Lawyers. I have written and lectured extensively in the area of family law, especially in custody and relocation issues.

My comments before the Commission reflect my own positions and statements, although consistent with policy enacted by the AAML. My views are based in large part on my experience which includes 38 years of legal practice, handling numerous custody trials and appeals. I have appeared in appellate custody cases in all four Appellate Divisions.

I am desperately concerned that we who work in the legal system protect children whom I have described as the victims of "silent child abuse" which is the impact of divorce upon children. I am devoting projects during my year as President of the Academy (which starts in November 2004) to protecting children in divorce.

I will confine my written remarks to a summary of some of the areas which I will cover in my oral statement before the Commission.

PARENTING PLANS

The American Academy of Matrimonial Lawyers undertook a project studying the American Law Institute's Principles of Family Law. I co-chaired the AAML Commission which has been engaged in that study. We have drafted a comprehensive Parenting Plan which is a template for our Fellows. Assuming that the Academy's Parenting Plan is enacted by our Board of Governors who meet in November I intend to make that Plan a highlight of my administration. We will disseminate it widely to our Fellows and on our website. I want our Fellows to work with clients and have everyone think about all the ways that parents can work to make children's lives easier after family dissolutions - how they can address a variety of issues in a Parenting Plan which reduces future problems for the newly constructed family.

I also will have a new Academy brochure to accompany our Parenting Plans. It will be along the lines of "Stepping Back From Anger", the Academy's earlier brochure which was published when I chaired the Custody Committee. It will be in user friendly language, including many frequently asked questions by parents and some suggested responses which protect children. It will address why we need comprehensive parenting plans. I also hope to have a video made which will allow a lawyer to have a client work with the Parenting Plan template on a computer at home or in the lawyer's office. The video will assist the client to rough draft the form on their own as well as give them some helpful hints to protect children. The client and lawyer then can review the client's Parenting Plan.

CUSTODY APPEALS

I have handled far too many custody appeals. I have always believed that these appeals (as well as custody trials) require a speedy resolution. Everyone's life is "on hold" until final decisions are made when custody is at issue.

Custody appeals should be expedited. They should be on fast tracks. There should be no excuse that the "transcript is not ready", especially in this day and age when things are more readily available due to computers. The courts must assist and direct immediate transcripts and assign counsel where appropriate. Stay applications in custody cases should be heard quickly and temporary transfers of custody should be avoided.

EXPEDITE CUSTODY PROCEEDINGS AND TRIALS

When custody decisions cannot be made by parents without the assistance of our courts, the crux of a family's life is placed on hold. Children even if they might not know details, sense that there is uncertainty about where or with whom they will live in the future. Some of them worry about what happens if there is a future geographic move in a relocation case. This is especially true where older children have been interrogated and questioned by forensic evaluators and/or their Law Guardian. Parties who bring a motion for temporary custody or for an access schedule as part of a divorce proceeding should never be forced to wait weeks or months for a court determination while everyone litigates these issues with extensive papers, perhaps preparing for appeals.

I am well aware that court calendars are congested and that courts handling these cases have incredibly high caseloads. However, other states have managed to expedite temporary determinations and some even hold brief testimonial fact-finding hearings.The operative word is "brief" and the complimentary word is "speedy". I understand that in state such as Texas a motion for a temporary schedule for parental access has a short hearing on a return date where the lawyers are required to announce in advance how much time their portion of the hearing will take and the court imposes temporal restraints upon counsel. A few hours of a hearing may well give the court the flavor of what is happening, provide enough information to make a meaningful decision and involve the IAS court in the substance of the custody dispute which may help forge a settlement if such is possible.

FAST TRACK BONAFIDE CUSTODY TRIALS/SPECIALIZED PARTS

I applaud the directive and court rule which called for continuous custody trial days. When I chaired the FLS of the NYS Bar Association that was one of my major proposals. It took a long time to bring into effect. However, I am all too aware that the rule is honored in principle but practically it is all too difficult to administer in many of our Supreme and Family Courts.

I have a suggestion which may not be met with great approval by the bench but it seems to be the way to attempt to expedite custody cases - since we have so many jurisdictions with IAS Supreme Court Matrimonial parts why can't we have one IAS Custody part? I anticipate that many Supreme Court Justices may not be anxious to serve in such a part but if a jurist took the case from the inception - perhaps weeding out the financial aspects or taking post judgment cases which only involved custody - it comports in part with the "one family, one judge" approach which has been so successfully attempted in some of our Family Courts. In fact, in some jurisdictions such as Erie County, the Family Courts have specialized parts. There the custody part has become very adept, also with the assistance of a court attorney. It handles issues such as newer legislation - like UCCJEA -- with facility and speed. A dedicated part gives the bench a chance to gain expertise with legislative changes.

RETHINKING FORENSIC EVALUATIONS

All too often it appears as if a forensic evaluation is ordered in virtually every custodial dispute, frequently with a direction for a lengthy, expensive evaluation. These are often ordered at the commencement of litigation. Trial courts should not assume that every custodial trial needs a psychological evaluation. Neither is a home study nor a probation report necessary in every instance. Sometimes automatic appointments are perceived by litigants and the bar as a way of postponing hard decisions which have to be made by our courts under their parens patraie responsibility. It sometimes appears as if the courts making such automatic appointments are looking for a way of prolonging proceedings, perhaps hoping that the parties will find a resolution with the assistance of the professional. That is not the province of an independent custodial evaluator. Similarly, the evaluator appointed by the court is not there to "referee" the ongoing disputes while the case awaits trial.

If a custodial evaluation is to be ordered (and I believe that it should be the exception rather than the rule) the order appointing the evaluator should be specific and include a direction that the professional is NOT to provide any recommendations. A psychologist can describe the "parental fit" and interactions observed in a limited setting between the child and parents. Mental health professionals have no special expertise or training in making anything more than educated guesses about future custodial arrangements. This is why all the Appellate Divisions have frequently held that the positions advanced by the appointed professionals are nothing more than recommendations which are not binding on trial courts. The final determination must reside with the court.

I strongly believe that there should be no appointment for a psychological custody evaluation if there is no history of mental health treatment for the child or the parties. There should be no such appointment without a history of psycho-pathology affecting one or more of the parties. Otherwise, these evaluations add a layer of cost, expense and time, oftentimes providing a court with limited relevant information.

Forensic custody evaluators cannot diagnose the parties. To do so would exceed their professional responsibility in an evaluation. It is not their function in an evaluation to treat and determine the mental health status of a litigant. It would be far more advantageous, in a situation where one or both of the parties or the child had received mental health treatment in the past, that their providers testify as to the issues faced by their patients, along with diagnosis and prognosis, if appropriate according to their discipline. A treating forensic will not be able to opine on the relationship between the patient and a child but there may be valuable insights and information that could be gleaned from such a witness without the need for a custodial evaluation.

I have seen evaluations where the appointed professional has an attitude or a mindset about an individual and then backs in the information which supports the desired result. That is a sad thing to happen especially when the cottage industry performing evaluations are often perceived in the public eye as unnecessary and an incredible expense.

I can remember when I tried my first custody cases some 30 or more years ago. A judge would say "counsel call your first witness" sometimes at the second court appearance. I would then examine or cross-examine my client or the other parent. The court would listen to a few witnesses, perhaps a teacher or a babysitter or a new spouse and sometimes render a decision in a week or so or even from the bench. I recently litigated a motion under the UCCJEA to dismiss the New York Family Court petition. My motion papers were presented in a timely fashion (CPLR timely); opposing papers were submitted before our court appearance. The Judge listened to oral argument and rendered a decision from the bench, on the record. The parents in that case were able to ultimately have their dispute heard in another state and they and their child were able to get on with their lives. I do not want children caught in the middle. We must take a look at what we are doing in custody cases and I commend the Matrimonial Commission for conducting this dialogue.

Respectfully submitted,

BARBARA ELLEN HANDSCHU

October 4, 2004

Last updated January 13, 2005

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