The Cost of Custody

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

Anita Waxman made her way into a beauty salon for her pre-show appointment. It was early afternoon in September and the Tony-winning Broadway producer was getting ready for the opening of a new musical. “This is the first time you’ve looked decent in four years,” said her hairstylist.


“It’s the first time I can breathe,” Ms. Waxman replied with a sigh.


Four years ago, Ms. Waxman and her husband split up, and finally, some $2 million later, the case is over. The lawyers’ fees were exorbitant, which was no surprise. But the costs of the outside experts called in to help her gain custody of her son, Yuri, were beyond anything she thought possible. The total bill included more than $75,000 for court-ordered psychologists to meet with the family; $5,000 for court-ordered psychological testing for both parents and the boy; $100,000 for the court-ordered law guardian, the lawyer representing Yuri; $200,000 for detectives; $300,000 for the forensic accountant to determine child-support payments.


Extreme costs for experts in custody cases are not simply an affliction of the rich. One midlevel publishing industry employee, who requested anonymity for fear of legal reprisals, spent approximately $94,000 in his fight for joint custody. At the conclusion of his case, he found himself back in court, this time to file for bankruptcy. “We spent a lot of angst, time, and money on so-called experts, when in the end they agreed with my argument all along – that my ex-wife and I should share joint custody,” he said from his home in Queens, where he’s trying to put his financial and emotional life back in order. “Family tragedy can be a cash cow for some,” he added.


He and Ms. Waxman, who both won their cases, and scores of others who have both won and lost, are claiming that custody cases have become a money-making business for forensic experts – who sometimes create more problems than they fix.


In response to growing complaints about the costs of custody cases, New York State Chief Judge Judith S. Kaye created a state Matrimonial Commission in June to examine the complex excesses in custody battles. When a parent begins a case, said the commission’s chairwoman, Judge Sondra Miller, “the cost doesn’t even hit them as a primary concern. We’re going to look at how we can cut back the cost of these proceedings and the time it takes to resolve them.”


“People become bankrupted by these proceedings. There are bad things in the system,” Judge Miller added. “This commission will not be an exercise in futility. I fully expect to effectuate changes.”


In 1993, Judge Kaye convened the state’s first Matrimonial Commission, which helped bring about several changes to the state’s divorce and custody system. (Lawyers, for example, were no longer allowed to attach mortgages or jewelry from clients whose legal bills skyrocketed beyond their means.)


With new complaints arising over the past decade, Judge Kaye saw a need to take a fresh look at the state of undoing a union, and convened the new 32-member panel. One of the hottest issues on the commission’s agenda is that of forensic experts, which can include law guardians for each child, psychologists, psychiatrists, accountants, appraisers, private detectives, and others with a matrimonial shingle. “We believe that forensic evaluations are not necessary in every court case,” said Judge Miller. “The court has to tailor the order. Some of them are charging exorbitant fees.”


And there’s the rub. While litigants retain the right to pick and choose their own attorneys, who often charge between $200 and $600 an hour in New York, parents say they have little or no say in the selection of court-ordered hired hands, who can charge whatever they want. Judge Miller qualified this complaint, explaining that low-income litigants in certain cases may qualify for free legal representation. But others in the system say that very few in the heat of the battle are apprised of this alternative.


The Matrimonial Commission held the first of five public hearings at Cardozo Law School on October 14 in order to hear former litigants’ stories firsthand. The panel listened as the emotionally fraught testimony from legal insiders and embittered parents alternately hushed the room and gave rise to standing ovations.


Jody Krisiloff, a Manhattan attorney, testified that there are no mandated procedures in place for when and how a court-ordered expert is appointed. “There should be limits to these evaluations,” she said from the podium. “They should be a last resort in custody disputes. They add a layer of controversy and exacerbate the problems between the parties.” Ms. Krisiloff’s comments, along with her recommendations to the commission for strict forensic procedures and an accountability system with an accessible database, drew the first round of applause from those in the audience.


Further testimony at the hearing from Nancy Erickson, a matrimonial attorney who works exclusively with the indigent population, also drew cheers from the gallery. Ms. Erickson testified that New York State has no laws governing the use of forensic experts and that the way these experts are used differs from judge to judge.


Judge Judy Sheindlin, best known as television’s “Judge Judy,” drew a frenzied standing ovation for her testimony. Judge Sheindlin served in the city’s Family Court years ago, and said that she’s well aware of the problems. “There are judges who abdicate their role by saying ‘What does the law guardian recommend,'” she said, adding acerbically that some of her former colleagues on the bench “can’t make a living doing anything else.”


Not everyone agrees that court-ordered experts constitute a problem in the legal system, however. Attorney Harold Mayerson, the chairman of the matrimonial law committee of the city’s bar association, who could not attend the hearing, took issue with this argument. “Since the advent of equitable distribution and the necessary expansion of women’s rights to share in the fruits of the marriage, there has been an explosion in forensic evaluations,” he said. “This has been a great boon to women and nothing should be done to change it.”


While charges about the lack of clear guidelines regarding court-appointed experts abound, there are several organizations that do provide intensive forensic training for law guardians and social workers. The Children’s Law Center in Brooklyn, for example, trains its staff in areas of law and ethical issues. The state’s Appellate Division Second Department, which covers three of the five boroughs, also provides detailed training programs for lawyers on how to represent children in custody cases. Both agree there’s a place in the system for their line of work.


But how that plays out in future courtroom dramas will be a Herculean task for the Matrimonial Commission to sort out. “The law guardian is not looking to step in the shoes of the parent,” said the law guardian director for the Appellate Division Second Department, Harriet Weinberger, who also sits on the Matrimonial Commission. “But sometimes the parents have really lost sight of the real issue, the well-being of their children.”


The New York Sun

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