Sunday, January 24, 2010



While getting ready to head into the office last week I had the misfortune of seeing the Biography Channel's bio on "Judge Judy". What should have been an example of the 1960s feminist struggle to rise in a male dominated field devolved quickly into the glorification of intemperance, intolerance and injudicious behavior. Of course I knew the end of the story going in, but watching it unfold where that behavior and rise in fame was rewarded and encouraged, was frankly revolting. While there were some voices of reason from the legal community interviewed who decried her insulting manner, the Judge Judy way of administering "justice" is lauded by too many as "tough but fair". My response: "Don't make me sick".

So why this post on "Judge Judy"? After all, it is just a TV show, mere "entertainment", another in a series of courtroom "reality" shows. Way too simple. We know that in many areas of life and in the entertainment world, boorish is not only acceptable, it is highly rated and prized for its ability to draw in the public-- like a car crash. I frankly don't care about that aspect of it. We all have our predilections and tastes, our “guilty pleasures”, if you will. (Yes, back in the day I might have watched the first few seasons of “The Real World”, and we do watch “Project Runway” in our house—naturally only when I have finished with the DVR of “Jeopardy” and the latest episodes of “Nova” and “Charlie Rose”). I am, however, of the "if you don't like it, change the channel" ilk. As an attorney, however, I am disgusted by the perception that what is spewed across the airwaves by Judge Judy is fair, just, acceptable or normal judicial behavior. For many of the public who regularly watch Judy Judy's antics and are amused by her or accept this drivel as typical, it shames my profession. It degrades the legal system. It falsely tells the public that this is ok and that she is a shining example of judicial conduct.

Most unfortunately, in the last few years I have seen in the real courtrooms of law too many Judy-like outbursts from some judges. Yelling; remarks designed to embarrass and humiliate; improper interference with the conduct of trials; general incivility; references on the bench to the lack of a judicial pay-raise, and the like. Perhaps Judge Judy’s rise to fame and fortune is a twisted inspiration to some or that society’s acceptance of this behavior has simply spread to a portion of the real judiciary. Judges are not alone in this. The conduct of some lawyers equals if not exceeds some of the judicial intemperance. Recently, for example, my office called an attorney to offer him the courtesy of advising him that we had the day before responded to his cross motion—which was jurisdictionally and procedurally defective by the way—and offered him time to respond even though we did not have to. His reaction was to rudely tell my paralegal and then me that we were basically annoying him and that he hadn’t seen our papers so he didn’t know if he wanted to respond. When we offered to fax an extra copy we were told he was leaving early so it didn’t matter and wouldn’t see them anyway so don’t bother—he’ll “see us in court” as it were. The next day in court he actually told the judge that we never served him and that we didn’t give him the courtesy of giving him an adjournment! Fortunately, I had briefed my associate about the conversation which took place the previous day and he recanted—sort of. He did so, however, without any shame.

The people who come into my office and the offices of other family law practitioners are often facing the most traumatic event or at least one of the most traumatic they have ever experienced. Most have never been in a courtroom before. They are uncertain of the future and where this chapter of their lives when closed, will land them. Do they deserve a Judge Judy? Do they deserve to have their dignity torn away? Even where a spouse engages in contemptuous action, does debasement do justice in place of clear, unequivocal sanction administered by a judge who commands respect through intellect and strength of judicial purpose? I think not.

There are too many good lawyers and good judges out there to have our profession sullied by these few, but loud “Judyish” exceptions to the rule. The public should know that the vast majority of judges (and lawyers) really care about what they are doing and the consequences of their actions. The court system has been clamping down far more than I can recall in the past on judges whose behavior does not meet the acceptable standards of judicial conduct. That should leave us going forward with a Bench which is legally, professionally and temperamentally ready, willing and able to do fairness and justice for all—again, the overwhelming majority of our sitting judges. For the very small minority who nevertheless wish to bully their way around the courtroom and tarnish the work of their brethren and sistren, maybe call NBC-- they need some help in prime time-- better to play a judge than be one. Either way...even Judge Judy will one day have her show cancelled—hopefully sooner rather than later.

Sunday, January 3, 2010


Divorce New York Style: Reconcilable Differences

For my first "missive" of 2010 I thought I would ruminate on the issue of custody litigation. A truly contested custody battle will cost tens of thousands of dollars if not into the six figures. That does not include the emotional and psychological turmoil that accompanies the financial costs. I have several of these going on at any given time and the level of hate which is generated is really difficult to put into words. Alright, I do like words anyway, so here are a few: deep, visceral, disgust, powerful, horrifying, exhausting, all-encompassing, depressive, vengeful, manipulative. Nothing good here so far. Thank heaven we have Mr. and Mrs. Charlie Sheen to show us the way. (OK, so that was a joke, perhaps not a good one, but sarcasm does have a point. Now for the more serious stuff.)

The law is “gender neutral” these days—at least as it reads. In practice, custody is still in many cases a woman’s claim to lose although in my experience, it has never been a better time for fathers seeking and receiving custody. There are shifting, and in many cases already shifted, views in this regard. This is particularly so as society’s (therefore judges’) positions on fathers’ involvement in child rearing have also evolved. As we have an ever-increasing amount of working mothers and two income families, parental responsibilities have shifted from the stereotypical “stay-at-home mom” to sharing and/or delineating parental roles in which mother and father each take on child rearing tasks. This makes establishing a clear “primary caretaker” harder to do in many instances.

Taking the custody component of a divorce case alone -- obtaining background information, conducting an investigation (which entails not only the legal costs, but also the services of a private investigator), preparation of applications for temporary custody/parenting time, the costs of an attorney for the child(ren), court appearances, preparing the client for hearings/trial, witness preparation, forensic custody evaluation costs, etc., -- mount quickly. If the matter proceeds all the way to a contested trial, there are potentially hundreds of hours of time expended in legal and legal related services. (This, of course, presumes that there are legitimate issues involved or in the unfortunate event the court permits baseless claims to be strung out over months and years. Certainly, if one party is making a meritless claim for custody and the court sees it as such, the process is much quicker and less costly.)

If the parties can come to an understanding, it is well established that not only are costs drastically reduced, but the parties and the children usually feel more at ease with the decision which better serves the children and their relationship with both parents. The parties are then looking at a far less financial expenditure to finalize an agreement and have it reduced to an order of the court, vis-a-vis the extreme costs referenced above. Moreover, those who can settle are doing less damage to their relationship going forward and less damage to their children.

I am not as “child centric” as some as it relates to the legal wrangling of custody litigation. I find that the pendulum has swung too far in the child advocacy direction in custody decision-making. Unless there is danger to a child where the protection of the child and asking the child for input is crucial to the determination, subjecting the child to lawyers, judges, forensics, etc., seems not only detrimental to a young child, but it puts the child squarely in the middle—the place where everyone always says the child should not be. Cutting through all of the p.c. talk and gibberish, everyone wants to know “which parent does the child want to be with”. The answer to that question may determine not only custody, but also child support, occupancy of the marital residence and it guides the litigation. At the same time, parents are jockeying for position; they are being told not to discuss the litigation with the child (even while having some discussion as to the process has got to be more helpful than being kept in complete darkness); children have their own lawyer in the process and as a result wield more power than they should—they are after all, children, and we all know they would never try and manipulate a situation at any given time. This problem is compounded by the fact that no one has the real answer as to what is best. Psychiatrist and psychologist opinions seem to change from decade to decade. For example, it used to be that overnight mid-week "visitation" was frowned  upon as it was claimed to interupt the child's school year structure and parenting continuity; now it is favored. Views on "parental alienation" also appear all over the map depending upon the expert.

What is clear is that child custody litigation is an absolute mess, and unless you are sure there is a really good reason to litigate the issue to conclusion (and sometimes there are), take your child out of the middle, leave the hate and disgust for your spouse for other issues, and come to a fair, real life and practical resolution as adults and parents. Rest assured, there is plenty of time and money which we can still spend fighting for/against the business distribution or legitimate support issues or even trying to show the court what a dirt bag he/she is.

So, if you are a mother, don’t assume you have an automatic right to custody and that your husband will be relegated to seeing the children every other weekend. If you are a professional and are working 65 hours a week, think how exactly you are really going to have the time to be a full time residential custodian. If your spouse regularly has a glass of wine with dinner, don’t submit papers to the court alleging they are an alcoholic who can’t be trusted with the children. If you are starting another relationship with another man/woman/both, in the middle of your case and can’t seem to stop yourself, please keep it to yourself (at least until you can keep all their names straight and get your golf endorsements back). Everyone (including the Sheens) hopes 2010 will be a better year than 2009. Using some common sense and taking custody issues off the table is as good as any way to start. Happy New Year.