In this week’s Ted Talk, Ruth Chang discusses hard choices. Soon after finishing Harvard Law School, Dr. Chang regretted her decision and switched paths. She received her doctorate in philosophy at Oxford University, and is now a professor at Rutgers focused on choice, freedom, value and action.

For Dr. Chang, “understanding hard choices uncovers a hidden power each of us possesses.” It would seem that the full use of that power is vital when dealing with divorce.

In any easy choice, one alternative is better than the other. In a hard choice, one alternative is better in some ways, the other alternative is better in other ways, and neither is better than the other overall.

“We also shouldn’t think that hard choices are hard because we are stupid.” Choosing after college between law school and philosophy, Dr. Chang remembers thinking:

If only I knew what my life in each career would be like. If only God or Netflix would send me a DVD of my two possible future careers, I’d be set. I’d compare them side by side, I’d see that one was better, and the choice would be easy.

At the time, Dr. Chang “did what many of us do in hard choices: I took the safest option.” But she learned being a lawyer was not who she was. It’s a mistake to think that in hard choices, one alternative really is better than the other, but we’re too stupid to know which, and since we don’t know which, we might as well take the least risky option.” Even with full information, a choice can still be hard.

For Dr. Chang, making hard choices may best be solved by our  “normative powers,” our “power to create reasons.” You create the reasons to pursue your choices.

We get to exercise our normative power, the power to create reasons for yourself, to make yourself into the kind of person for whom [your decision is the right choice].

Making the hard choice is not dictated by reasons given to us. “Rather, it’s supported by reasons created by us. . . . You might say that we become the authors of our own lives.”

In almost all instances, making the decision to end a marriage is a hard choice. But then making the decision what to do when your spouse tells you, “I want a divorce” is a hard choice as well. You are not handed the DVDs of your alternative lives if you stay married or get divorced; of the alternatives of seeking to win the spouse back, or get revenge, or move on.


Continue Reading Divorce: Hard Choices

Passport Boy.jpgCourts have recognized that it is in the best interests of a child to travel with a parent.  A court may provide relief when one parent unreasonably withholds consent from the other parent to travel with a child and compel a divorced parent to cooperate with the other parent to secure a passport for a

tugging child.jpgIn fact, we may have all failed the Y. family children (name deleted at the request of the family). Their parents have spent the last four years fighting in court. Their custody litigation will likely last at least another two years.

The result: one child who may be suicidal; the other self-mutilating.

Reading appellate court decisions cannot possibly reveal the nuances faced by sitting Family Court Judges. This, then is not a critique of any one particular decision. Rather, we must acknowledge that the overburdened judicial system may no longer be able to serve “the best interests of the children.” In fact, the court system itself may be hurting our children far more than any decision.

After four years of litigation, including the year needed to obtain this decision, the Appellate Division, Second Department, in Matter of Dana H. v. James Y., sentenced the Y.-family children to another two years of court fights . . . . unless their parents can get their act together.

James Y. and Dana Y. H. (now-remarried) divorced in 2004. At that time they had agreed to share joint custody, with the mother having primary physical custody. However, the mother relocated with the children to South Carolina without the permission of either the father or the Family Court.

As a result of the mother’s relocation, physical custody was transferred to the father. He moved with the children to live with his mother.

Both parties then petitioned the Family Court for sole custody of the children, with the mother also finally seeking for permission to relocate the children to live with her and her new husband in South Carolina.

After a trial conducted over the span of a year, Nassau County Family Court Judge Conrad Singer by his June 23, 2008 order determined that the mother would be awarded sole custody of the children, provided that within six months she returned to live in New York.

On the other hand, if the mother refused to return to New York, it would be the father who would have physical custody of the children, but the mother would have final decision-making authority concerning the children’s welfare, education, medical, and mental health issues, except in the event of an emergency.

Ms. H., indeed, elected not to relocate to New York.


Continue Reading Has the Court System Failed the Y. Children?

Sad child torn picture.jpgIn an effort to help parents in high-conflict decision-making disputes, New York courts are now appointing “Parenting Coordinators.”

Professor Andrew Schepard of the Hofstra University School of Law in his  article, “Parenting Coordinator for High Conflict Parent” N.Y.L.J., 5/8/03, p. 3 col. 1, explained the role of Parenting Coordinator as “a combination educator, mediator and sometimes-therapist who helps parents develop conflict-management skills and decides disputes if they cannot. . . . [B]y supervising parenting and resolving conflict, a Parenting Coordinator helps high-conflict parents develop a tolerable working relationship (usually parallel as opposed to cooperative parenting) for the benefit of their children.”

In her 2007 article “Working with Parenting Coordinators” in the Summer, 2007 issue of the Family Advocate, the publication of the American Bar Association’s Section of Family Law, Eve Orlow, Ph.D., noted that a Parenting Coordinator mixes counseling and parent education with mediation and arbitration.

New York’s 8th Judicial District (the extreme west) has formalized the appointment process. Its court rules note:

Parenting coordination is a child-focused alternative dispute resolution (ADR) process in which a mental health or legal professional with mediation training and experience assists high conflict parents to implement their parenting plan by facilitating the resolution of their disputes in a timely manner, educating parenting about children’s needs. With prior approval of the parties and the court, the PC may make decisions within the scope of the court order or appointment contract.

The overall objective of parenting coordination is to assist parents in high conflict to implement their parenting plan, to monitor compliance with the details of the plan, to resolve conflicts regarding their children and the parenting plan in a timely manner, and to protect and sustain safe, healthy and meaningful parent-child relationships. Parenting coordination is a quasi-legal, mental health, alternative dispute resolution process that combines assessment, education, case management, conflict management and, upon consent, sometimes decision making functions.

New York courts seem to favor therapeutic or forensic evaluation backgrounds, rather than mediation skills and experience. Moreover, as Parenting Coordinators in New York are without final decision-making power, they may simply add another layer to the judicial process; in some instances only fueling the bitterness of one or both parents.

New York’s judiciary securely guards its exclusive power to make custody and visitation decisions.  Thus, in its October, 2011 decision in Silbowitz v. Silbowitz, the Appellate Division, Second Department reminded us that:

Although a court may properly appoint a Parenting Coordinator to mediate between parties and oversee the implementation of their court-ordered parenting plan, a court may not delegate to a Parenting Coordinator the authority to resolve issues affecting the best interests of the children.


Continue Reading Are Parenting Coordinators Too Little, Too Late in Custody and Visitation Disputes?

Rip up contract 3.jpgShlomo Scholar and Shoshana Timinisky married in 2005. They had one child the next year.  The year after that they entered a stipulation of settlement to resolve their divorce action.

Included in that stipulation was the parties agreement that Ms. Timinisky would have sole custody of the parties’ child. However, the parties also agreed that custody rights be limited by an agreement to share decision-making on all issues relating to the child’s education. The parties pre-selected an arbitrator to resolve their failure to agree on such issues.

Such a disagreement arose. However, in a September 9, 2010 order, Queens County Supreme Court Justice Thomas Raffaele denied the father’s motion to enforce the parties’ stipulation. Instead, without a hearing, the mother was granted sole decision-making authority with respect to the child’s education in the event that the parties were unable to agree to a parenting coordinator (traditionally employed to facilitate parent communication and the mediation of disputes).  Justice Raffaele also disqualified “a certain individual from arbitrating issues regarding the education of the child.” Finally, on its own motion, Justice Raffaele enjoined Mr. Scholar from bringing any further motions without the permission of the Supreme Court.

In an August 9, 2011 decision of the Appellate Division, Second Department, in Scholar v. Timinisky, that Order was affirmed. The appellate court ruled that Justice Raffaele properly determined that a change of circumstances required a modification of the parties’ stipulation of settlement to protect the best interests of the child. New York’s best interest standard was to be applied to resolve a dispute regarding parental joint decision-making authority.


Continue Reading Court Avoids Parents' Agreement to Arbitrate Disputes Over Education of Child