Judicial Discretion and the Voice of the Child in Resolving Custody Disputes: Comments on the Think Tank Report

• Published date: 01 April 2014
• DOI: http://doi.org/10.1111/fcre.12083
• Date: 01 April 2014
• Author: Sondra Miller

JUDICIAL DISCRETION AND THE VOICE OF THE

CHILD IN RESOLVING CUSTODY DISPUTES:

COMMENTS ON THE THINK TANK REPORT

Hon. Sondra Miller

Dear AFCC Think Tank on Research, Policy, Practice, and Shared Parenting:

Thank you for your impressive report and the opportunity to review and reflect on its consider-

ations and concerns.

My views reflect my experiences as a judge (21 years: 3 years,Westchester County Family Court;

3 years, Ninth Judicial District Supreme Court; and 15 years, New York State Appellate Division,

Second Department) as well as my experience prior to the judiciary as a practicing attorney and my

current experience as chief counsel to McCarthy Fingar LLP in White Plains, New York, where I

concentrate on mediations, arbitrations, collaborative law, and appeals.

Points of Consensus: I agree with Points 1, 2, 3, 4, 5, 6, 7, 9, 10, and 12.

As to Consensus Point 8, I do not agree with the majority of ThinkTank professionals who support

a presumption of joint decision making. I prefer the case-by-case approach per the views of the

minority. In my experience, presumptions all too often are applied by the courts reflexively and, as

noted in the report, under some circumstances, a presumption of joint decision making may result in

harmful consequences to parents and children.

Consensus Point 11: I would add as an important decisional factor the “voice of the child,” which,

if the child is competent and mature enough to express his/her wishes, should be accorded substantial

weight (per New York law).

Domestic Violence: I am in agreement with the warning expressed by some commentators as to

domestic violence concerns regarding shared parenting or decision making. The complexity of

domestic violence requires the greatest protection for the victims and their children, which largely

prevents the cooperation and communication required.

Research would be most welcome and valuable in the following areas:

1. Which is worse—the harm suffered by children from inappropriate shared parenting or the

harm suffered by the lack of shared parenting when appropriate?

2. When there is “moderate conflict,” can shared decision making be workable, and how?

3. What are the positive/negative effects of children alternating between homes regularly? Does

this cause more anxiety than benefits?

4. The effect on toddler/infants of overnight visitation.

5. How to deal with the “alienation” factor or the “friendly parent” factor, i.e., howmuch weight

should be afforded those factors? Unfortunately, significant case law reflects the courts’

affording great weight to these factors while not considering the other multiple “best interest”

concerns relating to custody and parenting time issues.

6. Should a judge be empowered to question parental decisions and on what basis? Manifest

injustice? The best interest of the child? Judicial discretion? I vote for the latter. In my view,

judicial discretion is inevitable in ultimately determining the “best interest of the child.”

Clearly, we need competent judges who have appropriate training in order to reach reasonable

conclusions. However, in any event, in the last analysis “the buck stops with the court.”

Correspondence: smiller@mccarthyfingar.com

FAMILY COURT REVIEW, Vol. 52 No. 2, April 2014 198–199

© 2014 Association of Familyand Conciliation Cour ts