Miller, Sondra

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Pace Law Review Volume 27 Issue 4 Summer 2007 Symposium on the Miller Commission on Matrimonial Law Article 3 June 2007 The Commission's Process and Recommendations Sondra Miller Follow this and additional works at: https://digitalcommons.pace.edu/plr  Part of the Family Law Commons Recommended Citation Sondra Miller, The Commission's Process and Recommendations, 27 Pace L. Rev. 551 (2007) Available at: https://digitalcommons.pace.edu/plr/vol27/iss4/3 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact dheller2@law.pace.edu. StatementThe Commission's Processand RecommendationsThe Honorable Sondra MillerChief Judge Judith Kaye - a long time champion of courtreform, adopted the families and children of this state early inher judicial career and made them a top priority. Although sub-stantial improvement had been made since the implementationof the Milonas Commission in 1993 - the matrimonial and childcustody area of the law still required more attention. To thatend, Chief Judge Kaye established the multi disciplinary MillerCommission in January 2004 and provided me with the oppor-tunity and privilege of Chairing the Commission. The composi-tion of the Commission members included judges, attorneys, alaw professor, a CPA, a mental health professional, advocates ofvictims of domestic violence and an ADR professional.The Commission was charged with taking a global view ofthe practices of the divorce and custody dispute processes inNew York State and recommending reforms to correct existingproblems. It held a series of public hearings at various locationsthroughout New York State - which included Albany, Buffalo,New York City and White Plains. The Commission reviewedwritten submissions and other written information. Addition-ally, it met with bar associations and other interested agencies.What became evident during the course of the Commis-sion's work was an overall dissatisfaction by the public, thebench and the bar with the litigation processes in supreme andfamily courts dealing with matrimonial and family law relatedmatters. The Commission recognized the need to change the5511PACE LAW REVIEWvery culture of the system and to make explicit recommenda-tions to reduce trauma, cost and delay.After more than 20 months of conducting public hearings;reviewing the transcripts from those hearings, reports, surveysand letters; and much discussing and deliberating, the Commis-sion provided recommendations included in the 70 pages of theCommission's report and more than 100 pages of theappendices.'The Recommendations included:" The need to change the culture from divisiveness andbitterness to more understanding and cooperation. Andtoward that end - certain changes in language wereimportant." Language - substitute parenting time for visitation- a term which has accumulated negative connotationsfailing to recognize that a non-custodial parent re-mains nonetheless a parent.* Substitute attorney for the child for law guardian tocorrect misconceptions of their proper role as attor-neys, not fiduciaries bearing established responsibili-ties, and ethical constraints as attorneys." Administration of our Courts - The Commissionrecommended:1. Enhanced authority and title for the statewide dep-uty chief administrative judge for matrimonial mat-ters - which has been accomplished.2. Additional resources - due to exceptionally heavycalendars, i.e. additional law clerks, referees, socialworkers, etc.3. Appropriate facilities - case conferences for divorceand family disputes should not be held in lavatoriesand hallways.4. Three-year terms for supreme court judges wherepracticable, and the judges should take with them un-finished matters where appropriate for an 18-monthperiod.1. The report and appendices, as well as testimony, can be viewed at http:/lwww.courts.state.ny.us/ip/matrimonial-commissionlindex.shtml#report. The textof the report is reprinted here as Appendix A.552 [Vol. 27:5512https://digitalcommons.pace.edu/plr/vol27/iss4/3STATEMENT5. Early intervention and provision of servicesshould be further integrated into the court systemstatewide.6. Judges should be carefully selected to serve onthese courts since no courts require more extraordi-nary breadth of knowledge or temperament.* Improving the Process: Reducing delay and cost -The report includes many recommendations to this end,some requiring legislation, others requiring court rulechanges and administrative modification. Among them:1. No fault divorce - The Commission recommendedlegislation providing for no fault divorce where nojudgment for divorce should be entered until all issuesregarding maintenance, child support, equitable dis-tribution and custody have been decided and incorpo-rated into the decree. There is no doubt that faulttrials exacerbate the time, expense, trauma and bit-terness in divorce proceedings, and are often usedmerely as a tactic for delay.2. Early intervention and provision of services -See Appendix F.23. The use of a Model Preliminary Conference Or-der - See Appendix D. 3 The commission stronglyurged that the courts and the bar utilize the order in-cluded in Appendix D of the Report, which the Com-mission believes will serve to expedite the process andeliminate unnecessary motion practice.4. Model orders - The Commission Report and Appen-dices contain several model orders and recommenda-tions for rule changes including among them:A. Automatic orders preventing the parties whenfiling their RJI's from transferring assets except inthe ordinary course of business and for daily livingexpenses.B. Discretionary stays on appeal - The Commis-sion recommended the legislative modification ofCPLR 5519 providing that automatic stays on ap-2. Id.3. Id.20071 5533PACE LAW REVIEWpeal EXCLUDE orders for child support, mainte-nance and counsel fees.C. Model orders pertaining to ATTORNEYS FOR THECHILD, FORENSIC EXPERTS AND FINANCIAL EXPERTS -See Appendices G, H, J and K.4 Such model ordersif required, uniformly by court rule, should definethe role, the payment and the responsibility ofsuch experts, eliminating a substantial degree ofconfusion, inconsistency and litigation resultingfrom current ambiguities.D. Resolution orders - Provide that where a partywillfully fails to comply with court ordered discov-ery, the matter should be deemed determined infavor of the party demanding the discovery." Parity Among the Courts - The Commission recog-nized that due to our unique SPLIT SYSTEM, custody,parenting time and ancillary issues may be determinedin both supreme and family courts, causing duplicationand confusion and adding cost, delay and trauma to suchproceedings. While the question of re-structuring thecourts was not before the Commission, it made certainrecommendations to alleviate the problems. Amongthem, the adoption of a rule allowing for the transfer tothe supreme court of a family court matter where a di-vorce action is pending in the supreme court - whenpracticable. Where counsel was assigned in the familycourt, the Commission recommended that the assign-ment be continued in the supreme court. The legislaturehas already effectuated that recommendation.Further, that a rule be adopted that any post-judg-ment application to modify a supreme court decree bebrought in the supreme court if such action is broughtwithin an 18-month period after a divorce judgmenthas been entered." Access and equityThe Commission recognized the importance of equityand access to all parties involved in divorce and familylitigation.4. Id.[Vol. 27:5515544https://digitalcommons.pace.edu/plr/vol27/iss4/3STATEMENTThe Right to Counsel - the Commission recognizedthat the right to legal representation in contested matrimo-nial proceedings is essential to the fair and expeditious res-olution of these cases. And to that end, the Commissionrecommended the expansion of assigned counsel and in-creased funding for legal services to provided representa-tion to the low- and moderate-income litigants as beingessential to the administration of justice.Additionally, the Commission recommended that coun-sel have the obligation to advise their clients of alternativesto litigation, that they discuss ADR options with their cli-ents and that section 1400.2 of the N.Y. Court Rules, theStatement of Client's Rights, be amended accordingly.Also essential to the administration of justice, as notedby the Commission, is the recognition of the needs of a di-verse population, increased sensitivity and understandingof various cultures.* Substantive law issuesThe Commission recommended that the legislatureeliminate from New York divorce law the burdens of evalu-ating enhanced earning capacity as an asset, and abandonthe doctrine established by O'Brien v. O'Brien.5 Such legis-lation would also require that the trial court consider aspouse's contribution to the development of the other's en-hanced earning capacity in arriving at equitable distribu-tion of the remaining marital property, and in appropriatecases, order maintenance that does not cease uponremarriage.SIGNIFICANT CHANGES IN NEW YORK STATE1. By court rule, judges are now authorized to mandateparties to attend parent education programs.2. While mediation programs and services have been inplace in the New York State Family Courts for the past20 years, during the past two years, mediation has beenintroduced and has grown substantially throughout thestate - so much so that mediation services are being of-fered and provided to families in custody and parenting5. 66 N.Y.2d 576 (Ct. App. 1985).2007] 5555PACE LAW REVIEWdisputes in Supreme Courts (N.Y. County, SuffolkCounty, Kings County and Erie County). Excellenttraining programs are being conducted by the New YorkState ADR Office so that mediators can be trained andutilized throughout the state.3. Pilot projects are ongoing in various parts of the state -Nassau, Suffolk and the 8th judicial district in which va-rious of the most significant reforms advocated in the re-port have been integrated.4. Enhanced education and training for the judiciary, judi-cial hearing officers and the bar (specifically attorneysfor the children) have been accomplished and are ongo-ing. Specialized training programs have been developedand offered to newly appointed judges, as well as forjudges newly assigned to matrimonial or family courtparts.5. The administrative board will be studying the changesrecommended by the Commission that can be effectu-ated by changes in the court rules.Notwithstanding these significant gains, implementation ofreform requires hard work and continued good faith and mean-ingful teamwork among the stakeholders. Following the publi-cation of the report, Chief Judge Judith Kaye established theOffice of Family Services, where I serve as Director, a proactivethink tank to help develop best practices and work toward thechanges envisioned by the Matrimonial Commission. Our firstproject was the organizing of a symposium. The Office of CourtAdministration, in conjunction with the Association of the Bar,Hofstra Law School and Pace Law School sponsored a day-longsymposium, "Improving Justice for Children of Divorce andSeparation," which was held on Friday, October 6, 2006, at theAssociation of the Bar. The purpose of the symposium was togather interested professionals working within New York'smatrimonial system to voice their suggestions and concerns andgenerate discussions about how implementation of thesechanges can be best accomplished. In addition to concernedprofessionals from all regions of New York, experts and profes-sionals from other states were invited to speak and make sug-gestions .based on their own experiences from their respectivestates, each of which has already implemented similar changes556 [Vol. 27:5516https://digitalcommons.pace.edu/plr/vol27/iss4/3STATEMENTwith success. One hundred eighty-eight people were in attend-ance, including judges, lawyers, forensic and social science ex-perts, professors, interested individuals, law school interns andlaw students.The morning session presented a discussion of empiricaldata relating to the needs of children of divorce and separationwith presentations from representatives of other states, includ-ing California, Connecticut and Florida, states that have al-ready implemented similar programs to those recommended inthe commission report. A large-group session then followed, fo-cusing on overcoming resistance and obstacles that may posebarriers to implementing the recommended changes in matri-monial and custody cases; this session also included ideas andrecommendations from professionals in other states. Duringthe afternoon, the attendees split into small group sections tomore candidly discuss individual concerns and suggestions.The symposium concluded with all participants coming back to-gether in full to discuss what was heard throughout the smallgroups.A synthesis of the resulting recommendations, serving asan addendum to the Commission's Report, was distributed toall attendees and will be further incorporated in our ongoingefforts to further the goals of the commission.The "Post-Miller Commission Committee for Change"* hasbeen formed since the conclusion of the Miller CommissionSymposium. That Committee continues to work to assist in im-plementing the recommendations of the Commission. It is pres-ently focused on efforts to effect the passage of no-faultlegislation in New York, the only state still requiring fault fordivorce where only one party wants out of a marriage.Proposed rule changes, as recommended in the CommissionReport, have been presented to the Administrative Board of theCourts of the State of New York and we have been assured theyare being considered.The increased use of mediation, parenting plans and parenteducation programs throughout the state, enlarged and im-* Committee in formation: Hon. Sondra Miller, Anne-Marie Jolly, Esq., Prof.Andrew Schepard, Prof. Janet Johnson, Alton Abramowitz, Esq., Daniel Weitz,Esq., and Lucille Oppenheim, Esq.20071 5577558 PACE LAW REVIEW [Vol. 27:551proved training programs for judges and staff, and the elevatedstatus of Hon. Jacqueline Silbermann to statewide DeputyChief Administrative Judge for Matrimonial Matters are en-couraging improvements. With the continued support and en-thusiasm of our remarkable Chief Judge Judith Kaye, we areconfident that the culture will change and the recommendationsof the Commission, when substantially enacted, will improvejustice for the children and families of New York.8https://digitalcommons.pace.edu/plr/vol27/iss4/3

The Commission\u27s Process and Recommendations

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The Commission\u27s Process and Recommendations

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