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The Child Custody System Is Broken; Our Kids Need It Fixed

03/14/2022 | New York Law Journal
To fix the child custody system requires an acknowledgment that “the system” is broken. The legal system is ill-equipped to handle the dissolution of the family and its re-ordering post-divorce.

The system by which Americans, specifically New Yorkers, decide how decisions for their children are to be made by parents who are divorcing is an antiquated relic which is based upon a premise that such decisions must be made within the legal system. Indeed, any suggestion that the courthouse is the last place a child custody decision should be rendered is met immediately with cries that parents have a constitutional right to make decisions for their children and such rights must be adjudicated in the courthouse. However, such arguments also stem from decisions by courts who simultaneously acknowledged that children and spouses were a father’s/husband’s chattel.

The Blue Ribbon Commission, a group of individuals selected by Governor Cuomo, issued an 18 page report purportedly seeking to fix the ills of the child custody system in New York (the Report). In its Report, the Commission focused almost exclusively on one participant in the child custody system: mental health professionals appointed by the court to perform a forensic evaluation of the family in the divorce process.

Mental health professionals typically provide critical information regarding the family: how decisions have been made by the parents in the past; who played which role in the family; description of family dynamics and interactions amongst parents and children; the existence of mental health issues which could impact parenting; and, potentially other information relevant to the family’s functionality. Mental health professionals provide opinions and, in some cases, make recommendations when asked of them by the court.

Importantly, under the current child custody system, no mental health professional is allowed to issue a final decision on custody. Rather, the final arbiter in each and every child custody case is the court. Thus, the Report’s fixation on mental health professionals as the root cause of the ills plaguing the child custody system lacks logic—especially when these professionals are invited to participate in the child custody system by both lawyers and judges.

Nevertheless, the Commission recommended (as one of 11) more legislation—specifically targeted at imposing more rigorous standards, even higher credentialing and continuing oversight of mental health professionals. While mental health professionals provide only opinions—subject to the same cross-examination and critique like any other expert—the Commission determined that the focus of any remediation of the child custody system must start with eliminating these reports immediately from the divorce process without suggesting an alternative. Perhaps such wholesale elimination of mental health forensic reports would force the child custody “system” to throw the baby out with the bath water—metaphorically speaking, of course.

To fix the child custody system requires an acknowledgment that “the system” is broken. The legal system is ill-equipped to handle the dissolution of the family and its re-ordering post-divorce. Allowing judges (i.e., lawyers) to be the final arbiter of decisions regarding the educational, medical, emotional and psychological best interests of a child is absolutely wrong. Under the current child custody “system”, parental decisions regarding a child are being made by individuals who possess nothing more than a law degree—three years of taking courses with topics like “Contracts”, “Bankruptcy” and “Civil Procedure”.

The Commission recommends additional education for mental health professionals who prepare forensic reports. And yet, mental health professionals, including social workers, have far more training and education dealing with families and identifying problematic parenting behavior than judges and lawyers. Neither law school nor experience on the bench provides a judge with the knowledge necessary to make such impactful decisions on a child’s development; and while judges receive training at New York’s Judicial Institute, such training does not supplant the years mental health professionals dedicate to training and studying.

Interestingly, the Report makes no mention of a more atrocious scourge in child custody determinations: Lincoln Hearings. A Lincoln Hearing is the outgrowth of case law; indeed, its origination dates back more than 50 years to a Court of Appeals decision from 1969. Since 1969 there has been little if any serious deliberation regarding Lincoln Hearings. The “hearing” is actually a conversation between the judge and a child held in the presence of the child’s attorney; a transcript of the conversation is created but held confidential from the parties and their counsel. The transcript may be read by members of New York’s Appellate Division if a child custody decision is appealed. These hearings have no written rules. Somehow, Lincoln Hearings remained unscathed by the Commission.

Equally untouched was the appellate process in child custody matters. If such a determination is part of a divorce, the child custody decision must await resolution of the financial matters before it can be appealed. Years can (and sometimes do) elapse before an appellate court can address a decision addressing parental access and decision-making for a child. Absent from the Report is a recommendation for expedited appellate review of a custodial decision (i.e., shortened briefing schedules and decisions to be rendered within 30 days of submission of all briefs). Expedited appellate review of child custody determinations is critical to fixing the child custody system.

Before practitioners and judges eliminate forensic reports prepared by mental health professionals, before the New York State Legislature imposes strict credentialing, mandatory reviews and continuing oversight over mental health professionals involved in the child custody system and before Family Court is merged into one court system, family law practitioners, judges, domestic violence advocates and legislators (all of whom were once children and some of whom are now parents) need to first acknowledge that the legal system is unfit to handle the dissolution of the family—specifically child custody determinations. Once such resolutions are moved out of the legal system, only then can a real fix be brainstormed and implemented.

Eric Wrubel is a partner and chair of the matrimonial group at Warshaw Burstein.
Reprinted with permission from the MARCH 15, 2022 edition of the “NEW YORK LAW JOURNAL”© 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.