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Jun 19, 2024, 10:57:08 PM

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A Guide to Special Masters

by Mark Heitner, MD, MBA

My credentials: MD-MBA, psychiatrist specializing in treating teens, with two vicious divorces to my credit, father of four, 19 years of continuous family court litigation. In short, I know kids and I know family court.

Let's start with five truths that I learned the hard way.

  1. No matter what you are told, judges are grossly biased towards women. As a result, they inflict domestic violence on men and their families. Very occasionally, men prevail against women, but this is the exception, not the rule.

  2. Judges are very busy, which means, they have a quota of cases to hear each day. They want to deal with simple issues, not complex ones. They simply want to get rid of cases, and have heard it all before. Your case is one of 40 they may hear each day.

  3. In the pecking order of law, family lawyers and family judges have only one level of legal professionals that are inferior: traffic court. With the exception of traffic law attorneys, family lawyers and family court judges graduated last in their class. There are few exceptions.

  4. Judges generally assume that everyone is lying, because everyone is lying. No one is charged with perjury for what they say in family court. Therefore it is a free-for-all with the truth.

  5. Besides a cost savings, people think that the main advantage of having a special master (defined below) is that one can have quick access to a decision-maker. It can be months before one can get in front of a judge after filing a motion, before a judge renders a decision. Special masters can often resolved issues in several days.

The downside to having access to a special master is less clear, as it is rarely spelled out. The downside to a special master is getting phone calls from one on Saturday night and Sunday mornings for non-emergency matters. The downside to arranging for this access is having home visits, which are expensive and truly disruptive. Simply put, the downside to having access to a special master is that they can have access to you. This access can be abused by someone with an agenda (see below).

Because of the horror of family court, friends of or lawyers for sophisticated fathers often suggest that fathers avoid court by hiring a special master. This article describes why this is typically a bad idea.

A special master is essentially a private judge that is paid by the hour to settle disputes. Usually they work with a retainer, which you must keep current. They are generally appointed by stipulation  both parties have to agree to the special master, and to his or her role and powers. They are generally empowered to make decisions about child support, and to settle day-to-day matters involving school choice, timesharing, scheduling, and all the other ongoing disputes that arise between divorced parents.

Special masters are usually lawyers, but some are psychotherapist-mediators. Both are disasters. Here's why.

The lawyers that become special masters are either old or young. The old ones are semi-retired judges who have heard it all before, and think they can help couples avoid the cost of court. The young ones are inexperienced, by definition. Neither actually is trained in mediation or in managing interpersonal conflict. That is, they know the law, but they don't know much about people. So my suggestion is that the scope of their appointment should be to make decisions about spousal support and child support, but they should not be used to deal with anything like parenting issues. In that limited role, special masters are a good idea.

Therapists, on the other hand, don't know jack about the law. They are just therapists, and want to "make nice". What happens during these kinds of meetings? First of all, because they don't know how the law really works, they are often clueless about how to make a decision that has legal ramifications. Second, the sessions generally go like this: the woman cries, and the man raises his voice or sounds angry. Who do you think the therapist sides with, the sad mommy or the angry daddy?

Two more important points.

  1. Special masters generally have all the power of a judge. But unlike judges, the decisions made by a special master are really hard to appeal. Judges assume that special masters have put in a considerable amount of time on an individual case, and therefore are in a better position than judges to make a decision. Once special masters make a decision, you are stuck. Second, special masters work in private, so that a judge, with rare exception, does not review their work. Judges work in public and are subject to examination and persuasion by advocates called lawyers. When judges make moronic decisions, lawyers know enough to file an appeal. Special master work has no actual review process. For all practical purposes, special masters can do whatever they want. As a result, anything goes.

  2. Who becomes a special master? Why do these two professionals get wrapped up in a process as dirty as special master work? Why isn't a family practice lawyer making money practicing family law? Why aren't therapists doing psychotherapy? There are two answers. Either they can't fill their practice (NOT a good sign) or they have AN AGENDA. To understand more about this agenda, keep reading.

But first, let's summarize: the decisions made by special masters are final. The people that do special master work are generally not the sharpest knife in the drawer, or they have an agenda, or both.

I have worked with three special masters. The first was a graduate a Yale law school, and had done special master work for several years. Unfortunately, his practice was always busy. There was always an emergency involving alleged child abuse that took precedent over my concerns. When pressed by my attorney to schedule meetings to mediate disputes, he would schedule, then cancel. His promises to render decisions by a particular date were meaningless, as these deadlines were ignored. After a year without any ability to get a decision done, he agreed to step down, to avoid me filing a complaint about his conduct.

The second special master was a female attorney who had terrific credentials as well. But it turned out, I was one of her first special master cases. It became obvious to us all that she was in over her head, but not before she had made disastrous decisions about spousal support and school choice for my children. Her decision process was essentially based on her unstated philosophy: mother knows best. Luckily, she was so uncomfortable dealing with interpersonal conflict that she bowed out early as well.

Undeterred, I hired a therapist-mediator as my final special master. I worked with him for nearly three years. Unfortunately, when I interviewed him before agreeing to have him serve as special master, there were a number of things he failed to disclose.

He did not tell me that his father had abused his mother. That he had been a bully throughout his teen years. He did not tell me that he lost custody of his children, and that they moved out of state. He did not tell me that he had little contact with his children for many years, but that this had "worked out in the end". That he didn't actually believe in 50-50 timeshare. That he thought it impractical to have both parents have an equal say in raising children. That he felt that it was his job to rescue other mothers (as helpless as his mother) from other fathers (as abusive as his father). I did not learn about his agenda, of taking children away from fathers to protect them, like he needed protection from his abusive father. I did not learn about this until it was too late.

My advice: avoid special masters, except as noted above, and take your time in asking around to find the best lawyer that you can. Interview past or current clients if you can. Check them out the way you would check out a brain surgeon. Be as thorough as you can, since your happiness will depend on it. And the happiness of your children. Good luck, you'll need it.

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