Patricia Duff

"To effect significant improvements in the quality, cost and delivery of legal services, the Bar must accept fundamental changes in its regulatory structure. Annointing a few laymen to serve on drafting commissions or disciplinary committees will not suffice. As experience with token representation in other contexts makes clear, such cosmetic gestures serve more to legitimate than to affect the decisions of professionally controlled regulatory systems. Rather, structural deficiencies in the Bar's present governance system mandate reforms offering nonprofessionals (the American public) more than a supporting role."
~ Professor Deborah L. Rhode, Stanford Law School

MATRIMONIAL REFORM COMMISSION HEARINGS
OCTOBER 14, 2004 - NEW YORK CITY
TESTIMONY OF PATRICIA DUFF
(Transcript of remarks.)

MS. DUFF: Good afternoon. My name is Patricia Duff. I want to thank the commission for allowing me to appear today and for attempting the Herculean task of fixing a very broken system.

Over the last year, as more scandal and news of various problems with the court system had begun to emerge, the integrity of the system has come into question in the public's mind. Thankfully this has been acknowledged by the chief justice and by others in leadership positions, and it is why we are here today.

For some of us, however, it is through the painful and senseless difficulties of making one's own way through a marital dissolution in the New York courts that we have come to discover how ill the system is, how little justice is dispensed from our state's courts and worst of all, how these problems fail our families and our children in profound ways that have yet to be measured….

Over the last year litigants who are often separated by their pain and grinding aspects of the process have begun to find each other to a degree I have not seen before. Too many cannot be here today because they have live cases that are still ongoing and have been prohibited from speaking here today, and many are so fearful of retaliation that they would be reluctant to come forward.

One, whom I will call JT, thought she was living the American dream. She immigrated to the United States, became a medical doctor, and eventually had a baby girl from a relationship that did not lead to marriage. She was thrilled to be the child's primary caregiver, although she allowed the father to see the baby girl whenever the father wanted.

Starting when the child was 14 months old, through a series of orders and conferences over a three year period, without a hearing or the testimony of a single witness, physical custody of the baby girl was turned over to the father so that the mother now sees her 4-year-old daughter one week, out of three.

There was a law guardian and forensic psychological evaluator, one who has often been appointed in matrimonial cases. There were reports that during this process the mother exhibited anger and the mother's concerns over the child's new, aberrant behavior were used against her as evidence of her anger.

Is it possible that the courts can allow multiple hearings and conferences on numerous issues while holding in abeyance the obvious question of who has primary responsibility for day-to-day care of the child? Why is it acceptable to courts to have two parents spending their family assets and income, not to mention the emotional stress, of several years of litigation when a swift determination of primary care and custody would settle so many issues for the child and allow stability and continuity of care? (Applause.)

MS. DUFF: Another mother, who is a financial services professional, took primary care of her daughter until the age of 5, when the father sued for custody. The parents had been split for a year. There was a guardian and forensics. The law guardian has been assigned to many cases we know of. The mother lost custody of the child despite the fact the child was doing fine in the mother's care.

After winning custody and relegating the mother to alternate weekend visits, the father then further curtailed the mother's rights by filing a restraining order, declaring that the child was frightened of the mother and finally disallowing even telephone contact. I happened to see the mother with the child at a dance recital, which the mother was allowed to attend. I am no psychologist or law guardian, whose expertise is in the law, rather than child rearing or psychology, but this child exhibited only the wonderful joy of seeing her mother, and jumped into her arms with a wide smile. (Applause.)

MS. DUFF: The mother is now able to see her daughter only with supervised visitation, a further action that has drained her emotionally and financially. Why should this mother, who was doing fine taking primary care of her child for the first five years of the child's life, be condemned from the child's existence and forced to fight battle after exhausting battle simply to restore a small piece of the important role a mother ought to have? (Applause.)

MS. DUFF: What was so broken for this little girl that the court had to set up this elaborate parenting arrangement to fix it? There are too many stories to go into in 20 the short time allotted here, including many that involve men as their parental rights to their children are eroded out of existence. (Applause.)

MS. DUFF: My colleague, Jody Krisiloff, and many others of us have worked very diligently over the last months to put together a document which we will be presenting to you later -- it is quite comprehensive -- suggestions for matrimonial reform -- focusing on forensic and guardian reform, and what we hope will be better due process with respect to standards for primary care. We urge that custody be determined first and quickly at the onset of the divorce process and within 75 days of commencement of the proceedings. (Applause.)
MS. DUFF: Custody should, absent compelling evidence of harm, be based on the children's lives as they existed before the hostilities started. (Applause.)

MS. DUFF: The child's wishes should be heard, but they should not be seen through the prism of the law guardian or forensic. (Applause.)

MS. DUFF: The court could hold an on-the-record examination of each party, within 45 to 75 days after filing a petition for divorce, to assess which parent is the primary caretaker. Visitation issues should be worked out in consideration of the respective involvement of the parties prior to dissolution and the child's age. Just as the American Law Institute has adopted these principles, we hope the courts of New York will, too.

Unless stipulated and agreed to by the parties, the court should allow each party no more than one 15 day extension for this hearing, and only necessitated by court scheduling or medical or other family emergency. In other words, get the process moving. (Applause.)

MS. DUFF: The court will then issue a factual finding, including a preliminary statement of which parent the court finds to be the primary caregiver, within 30 days after the court conducts the examination. The children's primary residence should not be altered pending the court's determination, but a visitation schedule appropriate to the needs and age of the children should be negotiated and discussed and adopted if the parties no longer share the same residence. Mediation and settlements may be attempted during this time frame. With greater sensitivity to the history of how the parents have divided caregiving in the past, the rest of the equation becomes must easier to resolve in many, if not most, cases.

We urge a dialogue to help redefine the notion of joint custody -- acknowledging that both parents are important to a child's life, but that children cannot be divided in Solomonic fashion. (Applause.)
MS. DUFF: Particularly where there is high conflict, children should have the benefit of a stable and continuous arrangement so that the primary caregiver prior to the onset of marital dissolution continues in that role. (Applause.)

JUDGE MILLER: Miss Duff, you have one minute.

MS. DUFF: We hope that consideration of no-fault divorce is not considered without first working out a better system or determining what happens to the children.
Furthermore, several days ago a group of us signed a letter requesting litigant representation on this panel. We liken it to the role of a consumer advocate. If you were manufacturers of automobiles, having the consumer involved in the process would be quite a natural thing. We think it is high time for litigant representation in these types of deliberations. We hope you will. (Applause.)

MS. DUFF: -- seriously consider this approach. We have any number of very bright and thoughtful and deliberate people, and I think it is time that we help you move forward. Thank you. (Applause.)

For more testimony of Matrimonial Reform Commission, please visit:

NYC Transcript 10/14/04
http://www.courts.state.ny.us/ip/matrimonial-commission/transcript.pdf

Albany Transcript - AM 11/04/04
http://www.courts.state.ny.us/ip/matrimonial-commission/albanyAM.pdf

Albany Transcript - PM 11/04/04
http://www.courts.state.ny.us/ip/matrimonial-commission/albanyPM.pdf

White Plains 02/17/05
http://www.courts.state.ny.us/ip/matrimonial-commission/whiteplains.pdf

Buffalo and the latest New York hearing transcripts are not available yet

.Go to the Matrimonial Reform Commission site for updates:
http://www.courts.state.ny.us/ip/matrimonial-commission/index.shtml