In practicing Matrimonial and Family Law for 40 years, I have the advantage of time and perspective to appreciate and be proud of what our chosen profession does well. However, as my professional life has reached its twilight years, I have become increasingly frustrated by what it does not. During my career, our system has changed, stagnated and failed to adopt debated reforms in the area of custody and parental access cases.
Efforts to have custody cases granted preferences, bifurcations, and be tried day-to-day have been subject to discussion, but never materialized. Early ”in camera” interviews rarely occur—although, such a “hands on” approach by the Court in appropriate cases, could help resolve contested custody cases early and spare families the accompanying emotional turmoil and cost of protracted litigation which so often ensues.
When I first started practicing, “Law Guardians”[i] represented children based on their opinion of what was in that child(ren)’s best interest. The bench and bar considered this problematic as a child(ren)’s preference was not voiced equally to that of their parents.
There is no easy solution, approach or formula to adjudicate custody cases. Our legal system is as imperfect as the litigants who come before it. Although society preaches that the well-being of our children is of the utmost importance, our legal system seldom gives custody cases the priority they deserve. Judicial resources are scarce and, after this pandemic, they will become even scarcer. Although the bench and bar do our best, we can do better, particularly as it relates to the role children play in their own representation.
In 2007, the Rules of the Chief Judge were changed.[ii] Law Guardians became “Attorneys for the Child” (AFC). Their role was changed to being charged with zealously advocating the child’s opinion, regardless of whether the AFC believes it to be in the child’s best interests.[iii] The child’s “wishes” dictate the AFC’s position with the Court.[iv] The only two exceptions are (a) when the child lacks the capacity for knowing, voluntary and considered judgment or (b) that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child.[v] When not representing a child’s wishes based on one of the above exceptions, disclosure of the child’s position is required.[vi]
Roughly coinciding with this change in the role of the child’s attorney and the resulting emphasis on the child’s preferences has been the Court’s virtual elimination of the role of the mental health professional in custody/access cases. Earlier in my career, mental health professionals were routinely appointed. They provided reports to the Court based on their interviews of parents and children as well as oftentimes family members and “significant others.” They gave opinions on custody, which is now frowned upon as not being generally accepted in the professional community and not scientifically reliable.[vii] The result is that today, mental health professionals are rarely appointed. The exception being where it appears that a parent or child has a psychiatric disorder, and then it is limited to that issue.
I submit that the revised role of the AFC is also problematic. Advocating for a child’s wishes pursuant to his or her instructions often does not lead to a just or well-reasoned result. Is it important to know why a seven- or 10-year-old does not want to see a parent or wants limited access without knowing the underlying cause? Is the child being unduly influenced by a parent’s alienation or depression? Is the child influenced by money and all that it can buy? Does one parent set higher expectations or is stricter? Does the child simply think that parent is “annoying”? Should the child’s opinion matter if he or she does not want to do homework, wants to hang out with the wrong crowd or be entitled to stay out late at night? Has a child been too empowered at the expense of the parent? Should a child really get to “drive the bus” and have the AFC act as his or her GPS?
Several years ago, Dr. William Kaplan authored a thought-provoking article regarding the lack of psychiatric maturity in children and adolescents. He questioned their ability to be fully capable of participating in a traditional attorney/client relationship. Dr. Kaplan stated that “[f]rom a neuroscience and child development perspective, there are compelling arguments to re-consider the child-directed representation. . . .”[viii]
Dr. Kaplan argued that child-directed representation does not “sufficiently reflect our current understanding of child-adolescent development based on recent neuroscience.” His article explained the difference between cognitive and emotional development, with the former possibly being suited for self-directed representation but not the latter. In other words, children’s emotional development lags behind their cognitive development, which impairs their decisions and behavior.
Dr. Kaplan argued that “[i]t is a mistake to assume that an adolescent is qualified cognitively and emotionally to participate as a co-equal in the legal process.”[ix]
In Roper v. Simmons,[x] the U.S. Supreme Court held it unconstitutional to impose the death penalty to persons who commit capital crimes before turning 18. Justice Kennedy recognized juveniles’ “immature and irresponsible behavior . . . , that juveniles “struggle to define their identity” and therefore have “diminished culpability.”
In Miller v. Alabama,[xi] the Supreme Court held that a person who commits a crime prior to turning 18 cannot be sentenced to life in prison without parole. Justice Kagan referred to juveniles’ “lack of maturity . . . and underdeveloped sense of responsibility” and failure to “appreciate consequences.” She pointed out that parents normally decide for their children matters of education, recreation, medical care and religious training.
Notwithstanding these considerations, rather than looking to mental health professionals to assist with issues regarding children, the Courts give undue influence to the child’s desires as advocated by the AFC. As a result, the AFC, on behalf of the child, has become the most influential and powerful attorney in the courtroom and the child the most important interested participant. Courts invariably defer to the AFC and ask: “What does the child want?” Why should the child’s position as advocated by the AFC matter more than that of the parties (parents) as advocated by their attorneys?
Another key consideration for the utilization of mental health professionals is that our adversarial system is premised upon finding the truth by hearing direct testimony with the ability to cross-examine. Neither the AFC nor the child can testify or be cross-examined. However, a mental health professional can provide such direct testimony which may be tested by cross-examination. The child’s position as advanced by the AFC should not go unchallenged.
Shouldn’t we know if a child’s preference or desire is not in their best interest or if they are exercising improper judgment? Although children are the AFC’s “clients,” they are not “parties” to the litigation, as they do not become adults under the law until they attain the age of 18.[xii] The mental health professional does not have to opine about the ultimate issue of custody, but may opine as to psychological features (if not disorders), motivation and biases of the parents and the child. Isn’t it better for the Court to have this professional input, information and perspective presented through direct testimony subject to cross examination to help it decide what is best for the child, rather than be unduly focused by the AFC’s argument of what the child “wants”?
The utilization of mental health professionals can provide a valuable perspective and guidance to the Court, parties, as well as the AFC. Mental health professionals, not attorneys, are educated to understand personalities, motivation and psychological features that may affect a child’s wishes and opinion. It is submitted that custody/access cases would resolve far better if the Court is presented with a more complete picture of the basis of the child’s view.
It is troubling that matrimonial and family courts regularly obtain professional information, in the form of imperfect and disputed opinions, from CPAs, actuaries and real estate appraisers on financial matters, but not professional information regarding wishes and preferences of children. The insightful contribution that may be provided by mental health professionals can relate to but not be on the “ultimate issue” of custody. Neither attorneys for the parties, AFCs nor judges are sufficiently educated in psychology or sociology. We are not schooled in recognizing our own biases, much less that of children. Those biases might result in unintentionally emphasizing certain information learned from the child and deemphasizing other material. By contrast, true mental health professionals are trained to identify their own biases and have learned to identify and present the projecting of their own experiences onto their subjects. A child’s unbridled preference should not necessarily rule the day. There are many more issues in these cases than just custody, such as access, activities and the ability or lack of ability of parents to work together. I submit that a Court will be better able to decide issues relating to children with the benefit of this professional information.
Dr. Kaplan stated, “While courts and attorneys often assume that by the age of 14 most adolescents can be relied upon to participate actively in a custody matter, it is sobering to recognize that adolescence is a period of destabilization with major changes in the brain.”[xiii] Dr. Kaplan further stated that pre-adolescents are “wired emotionally” to often favor the primary caregiver in his or her effort to maintain a sense of love and security.[xiv]
Today, our children deal with the fear of mass shootings, terrorism and, now, pandemics. Is it fair to have children of divorce deal with the probable lasting impact of voicing their opinions that favor one parent to the detriment of the other? No matter how much we may try, can we really believe we have insulated children in the divorce proceedings if we involve them in the process any more than is necessary? Every parent knows that no matter how much we attempt to shield our children from family problems—such as a parent’s serious illness, marital issues, financial stresses and a host of other difficulties and pressures—the children are keenly aware of same. It is likely that their awareness of their exceedingly influential role to their own detriment in affecting the outcome of their parent’s fight over them will have lasting negative effects.
It appears that the pendulum has swung too far, so that we have overly empowered children. Although parties are admonished not to involve their child in the case, this is unrealistic. Not only are parents only human, but they know, if only from their attorneys advising them, how important the child’s and AFC’s opinion is to the outcome of the case. The best antidote for this is to lessen the child’s power and put it back in the hands of adults.
As Dr. Kaplan opined: “[T]hey [children] should know that they are caught in the middle of a mess created by adults and this mess is going to be fixed by adults, including their parents, their own attorney and the judge, in their best interests.”[xv]
While financial cost is always an important consideration, the information provided by mental health professionals may reduce the overall cost of litigation by making it easier to settle custody cases. This will reduce the time and accompanying substantial attorneys’ and AFC fees. Is it an effective use of time and money to have advocated what a nine-year-old child “wants” without understanding meaningful insight of what may have influenced that opinion? The reduction in contested custody cases and/or their more expeditious resolutions will also preserve valuable judicial time and resources. Court rules may be formulated to expedite and address cost as well. The most paramount benefit is that the more informed and judicious handling of custody cases will result in greater public confidence in our judicial system.
The complicated, sensitive and critical importance of deciding how to place children in their best position following their already traumatizing experience created by the divorce proceeding must be given the highest priority in our judicial system. It is time to allocate resources and implement rules so we can practice what we preach. Important information and understanding better able to be elicited by mental health professionals must be available to the litigants (parents), their attorneys, the AFC and the Court. This information must be presented and tested in accordance with our adversarial system, by direct testimony subject to cross examination. We, as members of the bench and bar, must continue to examine and improve our profession. We must strive to make the most insightful information available to the Court in order to allow for the highest system of justice for families.
[i] See FCA § 249.
[ii] 22 NYCRR §7.2, added October 17, 2007.
[iii] 22NYCRR § 7.2.
[iv] Matter of Jennifer V.V. v. Lawrence W.W., 182 AD3d 652 (3rd Dept. 2020); Matter of Swinson v. Dobson, 101 A.D. 3d 1686 (4th Dep’t 2012), lv. denied, 20 N.Y.3d 286 (2013).
[v] Matter of Cunningham v. Talbot, 152 AD3d 886 (3rd Dept. 2017).
[vi] 22 N.Y.C.R.R. § 7.2(d)(3) –see also Matter of Mark T. v. Joyanna U., 64 A.D.3d 1092 (3d Dep’t 2009).
[vii] Frye v. United States, 293 F 1013 (1923).
[viii] Kaplan, William H., “Does Client-Directed Representation of Children Make Good Sense Based on Neuroscience and Child Psychology,” Family Law Review, Volume 46, No. 3, (Fall 2014).
[ix] Id. p. 16.
[x] Roper v. Simmons, 543 U.S. 551 (2005).
[xi] Miller v. Alabama, 567 U.S. 460 (2012).
[xii] Domestic Relations Law § 2.
[xiii] See endnote 8 at p. 15.
[xiv] Id. at p. 14.
[xv] Id. at p. 16.
About the Author
Kieth I. Rieger is President of New York Family American Inns of Court and a Fellow of the American Academy of Matrimonial Lawyers since 1991. He is a member of the NYSBA Family Law Section Executive Committee, a former member of the NYS Continuing Legal Education Board, former Dean of the Nassau Academy of Law, and a partner in Rieger, LLP in Garden City, New York. He is also Of Counsel to Storch Byrne, LLP in New York City.