Exclusive Interview: Ex-Judge Pushes Divorce Reforms
An exclusive interview with former Supreme Court Justice Sondra M. Miller about matrimonial reform in New York.
Following the exposure of crooked behavior in the Brooklyn matrimonial courts and years’ worth of complaints from judicial reform advocates, Chief Judge Judith S. Kaye created the Matrimonial Commission in 2004.
She hoped to foster meaningful change in the divorce courts, and the commission was “charged with examining every facet of the divorce process in New York and recommending reforms to correct existing problems.” The group included psychiatrists, lawyers, judges, and scholars.
The panel was led by former Supreme Court Justice Sondra M. Miller, and was dubbed the “Miller Commission” by some reports. In 2006, they released a final list of reforms, but they have drawn criticism from some activists for not producing enough radical reforms.
Patricia Duff, the founder of matrimonial reform group, Families for Justice, explained in an interview: “The commission was unresponsive to the litigants, [and they] didn’t make it more consumer-friendly, rather than lawyer-friendly.”
Judicial Reports sat down with Justice Miller to discuss these criticisms and her plans for the future.
JR: What’s next for matrimonial reform?
Miller: The Matrimonial Commission has completed its work. Now, I’m the director of the Office of Family Services, [and we plan] to do whatever we can to assist in the administration of the recommendations made by the commission.
Judge Ann Pfau who is the First Deputy Chief Administrative Judge has been working very hard with us to implement these changes. But they have been very busy with other problems. We hope things will move faster next fall. Judge Kaye has been preoccupied with judicial salaries. Once that’s resolved, I think she’ll be more receptive.
What we would like to do next is a major change in the legislation for no-fault divorce. It was a major priority of our commission, and it is too bad that the Legislature won’t proceed with that reform. It’s complicated. First of all, there are religious reasons that people have for not making divorce easier.
There are some very well-meaning groups who aren’t against no fault divorce, but they want the legislation to include so many reforms that it’s not likely that it will pass. The National Organization for Women wants [the bill] attached to all sorts of reforms that they think are essential. The bar leaders, judges, attorneys, and litigants we talked to were crying out for this reform.
The sad thing is that when we talk about no-fault divorce, we speak with many litigants who are trapped in abusive marriages, but they can’t prove fault. They don’t have broken bones, but they are being treated miserably, and they don’t have the means to start a new life by themselves. The marriage can be absolutely dead for years, and yet some of them are trapped.
[Finally,] there have been efforts to install more mediation in the courts. Mediation is a far more humane and better process for resolving these disputes, rather than litigation. The courts have a number of pilot projects to encourage mediation.
If you have been assigned counsel to someone in Family Court, then you are permitted to proceed with the case once it’s moved to the Supreme Court. Prior to that, a party was represented by assigned counsel in family court, but that individual was not permitted to follow them to the Supreme Court. The litigant sometimes couldn’t afford to pay for counsel.
JR: A number of vocal special interest groups have always felt passionately about matrimonial reform. How have you learned how to work alongside judicial reform activists?
Miller: We try to understand the point-of-view of those activists, and hope they can understand a different point-of-view. It’s mediation. We believe everybody should be listened to. We have not had any unpleasant incidents with these groups. We learned how angry they are. We tried to understand and have those parties who were disgruntled help make the system work better.
We didn’t deal with the people who came in very angry about their particular case, their particular judge or lawyer. That was not our function. We were only interested in the systemic. We wouldn’t discuss individual cases. That was for the appellate courts.
JR: How has the trial and conviction of former Matrimonial Supreme Court Judge Gerald Garson affected the matrimonial bench?
Miller: There are bad apples in every profession, unfortunately. It did not affect the matrimonial bench as a whole. It affected the Brooklyn bench. I know the judges who are sitting in Brooklyn [now], they are a very fine group of judges. My understanding of what happened came from New York Law Journal and the New York Times.
When people don’t abide by the rules, you don’t change them, you make them more enforceable.
JR: Many activists told us that complaints about matrimonial judges have been increasing. Do you agree with them?
Miller: I would not be the one who knows. You would have to speak with administrative judges about their matrimonial parts. I have no idea. From what I hear, which is truly hearsay, I don’t think they have increased. Maybe the [activists] are more vocal.
JR: A number of activists complained that the Matrimonial Commission should have included matrimonial litigants to make the commission more balanced.
Miller: We had a long discussion with them. There would be no end to the number of litigants and agencies and organizations who would want to be represented.
Our purpose was to hear from the people. The people on the panel are experts; these were not representative of the public. The purpose of our public hearings was to hear from them. It would not be helpful at all to put on endless numbers of the public on the commission. I have not heard that these groups are unhappy with the recommendations we made. I think they would like to see them effected.
JR: Many activists feel that that the whole law guardian system should be changed. How do you answer them?
Miller: That was a very important part of the testimony we heard. There were many people dissatisfied. I’ve read enough cases to know that sometimes the law guardians don’t get it. There has been an effort to train them, and teach them their function that they are supposed to represent children.
Unfortunately there is a long history where law guardians were treated as if they were guardians, and not attorneys. They would talk to the children like reporters. Their opinions, based on hearsay, would sway the judges. But they were acting as reporters, not as attorneys. I think the culture is changing, and now they act more like attorneys.
There are more trainings; I think they are longer. Harriet Weinberger who’s in charge of law guardian assignments in Second Department, she’s certainly aware of the situation. It’s an education. These people are going to school, some of them don’t get it. When they don’t get it, if they can’t do the job properly, then they should be removed from the panel.
She hoped to foster meaningful change in the divorce courts, and the commission was “charged with examining every facet of the divorce process in New York and recommending reforms to correct existing problems.” The group included psychiatrists, lawyers, judges, and scholars.
The panel was led by former Supreme Court Justice Sondra M. Miller, and was dubbed the “Miller Commission” by some reports. In 2006, they released a final list of reforms, but they have drawn criticism from some activists for not producing enough radical reforms.
Patricia Duff, the founder of matrimonial reform group, Families for Justice, explained in an interview: “The commission was unresponsive to the litigants, [and they] didn’t make it more consumer-friendly, rather than lawyer-friendly.”
Judicial Reports sat down with Justice Miller to discuss these criticisms and her plans for the future.
JR: What’s next for matrimonial reform?
Miller: The Matrimonial Commission has completed its work. Now, I’m the director of the Office of Family Services, [and we plan] to do whatever we can to assist in the administration of the recommendations made by the commission.
Judge Ann Pfau who is the First Deputy Chief Administrative Judge has been working very hard with us to implement these changes. But they have been very busy with other problems. We hope things will move faster next fall. Judge Kaye has been preoccupied with judicial salaries. Once that’s resolved, I think she’ll be more receptive.
What we would like to do next is a major change in the legislation for no-fault divorce. It was a major priority of our commission, and it is too bad that the Legislature won’t proceed with that reform. It’s complicated. First of all, there are religious reasons that people have for not making divorce easier.
There are some very well-meaning groups who aren’t against no fault divorce, but they want the legislation to include so many reforms that it’s not likely that it will pass. The National Organization for Women wants [the bill] attached to all sorts of reforms that they think are essential. The bar leaders, judges, attorneys, and litigants we talked to were crying out for this reform.
The sad thing is that when we talk about no-fault divorce, we speak with many litigants who are trapped in abusive marriages, but they can’t prove fault. They don’t have broken bones, but they are being treated miserably, and they don’t have the means to start a new life by themselves. The marriage can be absolutely dead for years, and yet some of them are trapped.
[Finally,] there have been efforts to install more mediation in the courts. Mediation is a far more humane and better process for resolving these disputes, rather than litigation. The courts have a number of pilot projects to encourage mediation.
If you have been assigned counsel to someone in Family Court, then you are permitted to proceed with the case once it’s moved to the Supreme Court. Prior to that, a party was represented by assigned counsel in family court, but that individual was not permitted to follow them to the Supreme Court. The litigant sometimes couldn’t afford to pay for counsel.
JR: A number of vocal special interest groups have always felt passionately about matrimonial reform. How have you learned how to work alongside judicial reform activists?
Miller: We try to understand the point-of-view of those activists, and hope they can understand a different point-of-view. It’s mediation. We believe everybody should be listened to. We have not had any unpleasant incidents with these groups. We learned how angry they are. We tried to understand and have those parties who were disgruntled help make the system work better.
We didn’t deal with the people who came in very angry about their particular case, their particular judge or lawyer. That was not our function. We were only interested in the systemic. We wouldn’t discuss individual cases. That was for the appellate courts.
JR: How has the trial and conviction of former Matrimonial Supreme Court Judge Gerald Garson affected the matrimonial bench?
Miller: There are bad apples in every profession, unfortunately. It did not affect the matrimonial bench as a whole. It affected the Brooklyn bench. I know the judges who are sitting in Brooklyn [now], they are a very fine group of judges. My understanding of what happened came from New York Law Journal and the New York Times.
When people don’t abide by the rules, you don’t change them, you make them more enforceable.
JR: Many activists told us that complaints about matrimonial judges have been increasing. Do you agree with them?
Miller: I would not be the one who knows. You would have to speak with administrative judges about their matrimonial parts. I have no idea. From what I hear, which is truly hearsay, I don’t think they have increased. Maybe the [activists] are more vocal.
JR: A number of activists complained that the Matrimonial Commission should have included matrimonial litigants to make the commission more balanced.
Miller: We had a long discussion with them. There would be no end to the number of litigants and agencies and organizations who would want to be represented.
Our purpose was to hear from the people. The people on the panel are experts; these were not representative of the public. The purpose of our public hearings was to hear from them. It would not be helpful at all to put on endless numbers of the public on the commission. I have not heard that these groups are unhappy with the recommendations we made. I think they would like to see them effected.
JR: Many activists feel that that the whole law guardian system should be changed. How do you answer them?
Miller: That was a very important part of the testimony we heard. There were many people dissatisfied. I’ve read enough cases to know that sometimes the law guardians don’t get it. There has been an effort to train them, and teach them their function that they are supposed to represent children.
Unfortunately there is a long history where law guardians were treated as if they were guardians, and not attorneys. They would talk to the children like reporters. Their opinions, based on hearsay, would sway the judges. But they were acting as reporters, not as attorneys. I think the culture is changing, and now they act more like attorneys.
There are more trainings; I think they are longer. Harriet Weinberger who’s in charge of law guardian assignments in Second Department, she’s certainly aware of the situation. It’s an education. These people are going to school, some of them don’t get it. When they don’t get it, if they can’t do the job properly, then they should be removed from the panel.