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The focus of our last column [NLJ, June 19] was criticisms directed towards attorneys, courts and legislators concerning how divorce, custody and support matters are handled. As we mentioned, an example of the response to that criticism is the creation of various commissions to study the problems and recommend solutions. Such a commission was set up in New York in January 2004 by the state’s chief judge, Judith S. Kaye. The commission was asked to look at the processes utilized by courts and lawyers in handling divorce and custody cases. A report was recently issued by the commission (the report and the appendices with suggested forms can be found on the Internet at www.courts.state.ny.us under the designation Matrimonial Commission). The commission’s report and many of the complaints that were considered involve basic problems with divorce and custody litigation. In our last column we touched upon some of the areas where we, as practitioners, can assist our clients by handling litigation better. We included suggestions about how we can streamline and demystify some of the processes. In this column, we will discuss some of the concerns raised in the commission report that are more appropriately addressed by changes in court rules, or the auxiliary processes used by the courts. Common area of concern: violations of court orders Certainly one of the most commonly cited areas of concern relates to the treatment of violations of court orders, particularly those relating to the payment of child support or interference with parental access. The problems concerning the payment of child support and enforcement of custodial access or visitation (as it is still known in most states) remain significant. For instance, the New York commission study contained comments from litigants suggesting that contempt proceedings were readily available in some courts but litigants in other courts were required to exhaust all available remedies before seeking a contempt order. This disparity in treatment leads to a lack of confidence in the system. Fortunately the situation has been remedied in New York through legislation. There are however, more wide-ranging issues with respect to child support and visitation. Theoretically, the payment of child support and the opportunity for access are not conditioned upon one another. For example, because they are both viewed as benefiting the child, parents are not permitted to withhold child support for lack of visitation nor, conversely, to refuse to allow visitation because the child support has not been paid. A parent who believes that he or she has been denied access to a child has an obligation to seek relief through the courts. While the policy behind the independence of these rights and obligations makes sense to legislators and judges, it is far more difficult for parents to accept. This has resulted in a number of significant changes both in the enforcement of support and the enforcement of visitation. These changes can be traced to federal legislation concerning the support of children. In order to promote its interest in reducing the number of children eligible for welfare benefits, the federal government became more actively involved in the establishment and collection of child support. Using a “carrot and stick” approach, it conditioned the receipt of federal welfare monies to the states on their establishment of child support guidelines and increased efforts to collect support from those obligated to pay it. In spite of increased efforts, however, enforcement of child support orders remains a significant problem. While wage withholding is seen as an effective method of collection, obligors who do not have consistent places of employment are a more difficult problem. As a last resort, many judges exercise contempt powers by placing obligors in jail. To some this seems to defeat the purpose as it is then difficult for an obligor to earn income in order to meet the obligation. In response, several jurisdictions have instituted “weekend jail time” for these obligors. Individuals who do not pay their support in a timely manner are directed to spend one or both days of the weekend in jail. This system also has the advantage of sending a clear message to obligors that the payment of child support will be taken seriously. While jail may be an appropriate sanction for those who have the ability to pay support but refuse to do so, it does not address the more common circumstance of obligors who are unable to maintain consistent employment. Focusing on the underlying reason for the non-payment of support, some states have instituted special “Fathering Courts” (so named because the majority of obligors are fathers). These courts are an innovative alternative to prosecution and incarceration for men with significant child support arrearages. The services that are provided include a needs assessment, case management, counseling and treatment for addiction and mental health problems, peer support and employment assistance. The program also provides a curriculum for parenting with the hope that the fathers can establish a more positive relationship with their children. Current research indicates that parents who have an ongoing relationship with their children are more likely to pay their child support. These programs have proved successful in recouping arrearages and helping obligors to remain current in their child support obligations. The flip side of child support enforcement is the enforcement of orders related to access to children, or as they are known in some states, visitation provisions. As efforts to enforce support obligations increased, obligors became critical of the emphasis placed on enforcing their obligation to pay support without what they viewed as a corresponding emphasis on protecting their rights to see their children. Some states responded by instituting expedited procedures for enforcement of visitation provisions. Known as “family access orders” they are designed to be filed pro se and to be heard on an expedited docket. This “fast-tracking” is in response to the immediacy of visitation requests and also considers that if petitioners are missing time at work in order to pursue lengthy court proceedings, they are less likely to be able to meet their support obligations. Statutory remedies for a failure to comply with a visitation order may include compensatory time, fees for counseling and attorney fees incurred in securing compliance with the custody and visitation decree. The use of “visiting or parenting” coordinators has also increased in response to this problem. These individuals are appointed by the court to help resolve visitation disputes in a timely fashion. While obligors have had some measure of success in strengthening the connection between the enforcement of the “obligation” to support and the “right” to visitation, another way of viewing the situation has emerged. Some advocates have suggested that the opportunity to spend time with one’s children is both a “right” and an “obligation.” They argue that parents who consistently fail to care for children pursuant to a decree should compensate those who do care for the children when they were otherwise obligated to do so. In jurisdictions that recognize remedies for a failure to assume parenting responsibilities, the added costs of child care will be assessed against them. An additional area of concern mentioned in the New York commission report relates to the appointment of forensic experts in domestic relations cases. Judges should have the authority to define the duties and obligations of such experts. This has become a significant issue as more courts rely on these experts. The question of the scope of the evaluator’s recommendations should be addressed. Frequent criticism over lack of affordable legal services Perhaps one of the most frequently cited criticisms of domestic relations practice is the lack of access to affordable legal services. In recent decades, legal services for the poor, the working poor and middle class populations have been drastically reduced. Domestic relations litigation has borne this diminution, perhaps disproportionately. Many attorneys are reticent to accept assignments, knowing that the initial retainer may soon be and the client may be incurring significant additional legal fees which may never be satisfied or which may become the subject of future litigation. It is critically important that clients, particularly those who are parents, have access to legal counsel. The issues confronting these families have significant implications for their future relationships as well as their continued financial well-being. While volunteer lawyers or organizations that enlist volunteer lawyers are to be commended, they should not be the sole or primary providers of legal services for those who have limited means. The New York commission, as well as other leading child advocacy organizations, are urging a change in the way that children’s attorneys are paid. These advocates deserve a fair and reasonable compensation, especially when they accept court assignments that are paid at less than customary rates to represent children. Barbara Handschu is a solo practitioner with offices in New York City and in Buffalo, N.Y. She can be reached via e-mail at [email protected]; Mary Kay Kisthardt is a professor of law at the University of Missouri-Kansas City School of Law. She can be reached via e-mail at [email protected].

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