Wednesday, May 19, 2010

When what is good for the Parent, is good for the Child

A recent ruling by an appellate court in New York, in a case in which I represented the mother, provides some helpful insight into the relationship between what is best for a child, and what can be reasonably expected of a parent with custody. The client has allowed me to discuss the case in Legal Briefs.

The appellate court overturned a child visitation order that directed the mother of a two year old boy to take the child to a distant state one week a month for visitation with his father. We argued that the order was both hurtful to the child (an expert testified that such an extended period of separation of a young child from the primary caregiver can cause long term harm), and that it imposed an unreasonable burden on the mother who was directed to bring the child to the distant state on one week’s notice from the father.

In its decision, the appellate court did not explicitly address the latter issue, the burden on the mother. Instead, the judges wrote:

"Additionally, the existing monthly visitation schedule providing for the child to spend one week per month in [the distant state] and the remainder of each month in New York creates a situation in which the child has two homes and no real sense of permanency in either, since the father is permitted to schedule his visitation week upon one week's notice to the mother."

This was in keeping with the principle that issues of visitation are to be made on the basis of the best interests of the child. However, in my opinion the Court was, as well, attempting to redress the unfairness to the mother. In arguing a case such as this, don’t leave out the impact on the parent of a court’s visitation order. If you make this case effectively, the court may find a way to respond even if it does so indirectly.

Monday, May 10, 2010


President Obama has chosen his second Supreme Court nominee, Elena Kagan, and much of the dialogue centers around ideology. Kagan would replace John Paul Stevens, viewed as the leader of the Court’s liberal block. Liberals fear Kagan is too conservative, and conservatives point to her support for gay rights, when she was Dean of Harvard Law School, as an indication that she may be too liberal.

This made me think of what kind of judge I want to hear my clients’ cases, after almost 40 years of practicing law. It’s not about ideology. It’s about fairness, the ability to listen, respect for the law, and respect for the litigants who stand before them. Cases, like life, don’t fit into neat ideological categories. They are fact specific. The judge you want is one who will work to grasp the particulars of the case and the people he or she is judging. A conservative judge, for example, in a case involving the sale of drugs might see something that separates the case from others. A liberal judge with strong opinions about drugs and their impact on poor communities might ignore or not even see it.

I recall a case in which I represented a group challenging the conduct of a meeting of the county committee of a political party. There was intense speculation about which judge would be assigned to the case and where that judge fit on the political spectrum. The case, it turned out, was assigned to a judge whose political leanings were unclear. He just listened to the evidence and made a fair decision, one which a more “political” judge might have backed way from.

So, when judging judges, apply the same standards you would want the judge to apply to you. Fairness trumps ideology almost every time. And, by the way, when Justice Stevens was appointed to the Supreme Court by President Ford in 1975, he was considered a pro-business conservative.