There are always ethical challenges in all areas of law, but particularly in family law, divorce law and criminal law cases.  In New York, our rules are somewhat based on the national standards imposed upon attorneys. So in child custody, child visitation, child support, paternity, divorces and domestic violence, oftentimes the requirement to follow ethical obligations are often times countered by attorneys’ personal, moral and idealistic beliefs.  That goes for the attorneys, judges and other legal advocates, i.e. attorney for the child.  

     In child custody cases, as the attorney for either parent, it is inevitable that personal beliefs about which one is the more “fit” parent arises.  In a situation where, for instance, the custodial mother has always been the primary caregiver, which includes preparing meals for the children, dressing the children, tending to them when they are sick, taking them to doctors/dentist appointments, encouraging practice of religion, encouraging and supporting social activities/engagements while failing to foster a relationship with the noncustodial parent, should that custodial parent be provided with representation that supports her maintaining custody?  Or should the noncustodial parent who puts education first, over health concerns of the child, prevail in a child custody case?  Well, morally, depending on one’s own personal beliefs, one may say that there is almost nothing else in children’s lives that deserve more emphasis than academics.  However, as the attorney for that custodial parent, advocacy on behalf of that client must be done zealously, diligently and professionally with all personal judgment aside.  Pursuant to the Disciplinary Rules, an attorney must not fail to carry out the contract of employment, shall not prejudice or damage the client during the professional relationship and shall advocate on behalf of that client zealously.  Furthermore, if the attorney is aware of controlling legal authority that is in the noncustodial parent’s favor in the same or very similar circumstances, he/she is obligated to reveal such information to the court if the other attorney does not, when presenting the case.  

      In child visitation cases, conflict typically occurs when the custodial parent refuses the noncustodial visitation or when the custodial parent insists on supervised visits.  As attorney for the custodial parent, unless there is proven history of domestic violence, child abuse and/or drug/alcohol abuse, exercising zeal and diligence in advocacy can be quite a struggle.  For attorneys who firmly believe that all parents should have free and unfettered access to their children, the tension in representing custodial parents who do not share in this belief presents a very difficult task.  However, pursuant to the Disciplinary Rules, the attorney must not intentionally fail to seek the client’s objectives through reasonable and available means, despite his/her personal views.  This, however, does not mean the attorney can not express his/her opinion; it just restricts the application of that opinion to the client’s overall objective and thus representation of him/her.  In situations like these it is sometimes very helpful when the attorney for the child reports that the his/her client’s position or the attorney for the child’s position (where he/she substitutes his/her own judgment) actually supports the attorney’s personal view.  Conversely, as the attorney for the noncustodial parent who has been the aggressor in domestic violence incidents, the drug or alcohol abuse or the child abuser, the conflict is just as profound.  What is the attorney to do when the client/drug abuser discloses that he/she is still using drugs but continues to insist on visits.  Well, the ethical rules do not limit its applicability in this particular circumstance.  The attorney still has an obligation to advocate zealously on his/her behalf, not prejudice or damage the client and more importantly, preserve the client’s confidences (except where permitted by another Disciplinary Rule or required by law).   

      The same holds true in child abuse/neglect cases.  As attorney for the noncustodial parent who is the abuser, in domestic violence, child abuse or drug abuse cases, there is typically an overwhelming conflict in ethically representing the noncustodial/abuser parent.  Many times both parents, and/or “persons legally responsible”, may be parties in child abuse/neglect cases.  It is not uncommon for one of the parties to pay for both parties’ counsel fees (since it is a conflict for one attorney to represent both parties).  In a situation like this, it may not seem so odd that the paying party directs a) how the attorney represents his/her client; b) how the attorney advises the client or c) even how the attorney communicates with the client.  This however, clashes with ethical rules.  The attorney must exercise professional judgment solely on the client’s behalf, disregarding the desires of others where it might impair the attorney’s own judgment.   

     In child support cases, the challenge is not minimized just because the Child Support Standards Act (“CSSA”) governs.  There are still many situations where ethics are tempted by moral and personal judgments.  Many of us are sympathetic to noncustodial parents who have other legitimate financial obligations that limit their ability to provide for their children as provided by the statutory guidelines.  Noncustodial parents who have not and do not run from their obligation to support their children, are at times unduly burdened by the obligation mandated by the statute.  As the attorney for the custodial parent, it can be unnerving to know that the noncustodial parent may be forced to resort to, what most of us would agree, is somewhat demeaning living arrangements, particularly where that party has child visitation at that home.  However, again, the Disciplinary Rules does not permit personal views to compromise our ethical obligations.  In addition, as the attorney for the noncustodial father, particularly, even questioning paternity or filing a paternity action may pose an ethical problem if that attorney does so solely for the purpose of harassing or maliciously injuring the custodial parent. That attorney could not even advise his/her client to not pay the court ordered child support, even though paying is improbable, unless he/she has a good faith legal basis to challenge the order. 

      In divorces, innumerable ethical obligations arise, putting the attorney in compromising positions.  Full disclosure in divorce cases is paramount to providing adequate and competent representation.  However, there are instances where it is tempting to advise a client to omit some information, not necessarily to mislead the other party but to avoid other consequences.  For instance, a client may want to leave out rental income on his/her Net Worth Statement because of possible tax implications or further exploration of income that may not be consistent enough to factor in property distribution, for example.  However, ethically speaking an attorney may not participate in the commission of a crime, must try to talk a client out of committing fraud and must report the fraud to the court (as long as the confidences or secrets rules are not violated) if the client refuses to.  How about where the client mentions that after shopping around he/she found a realtor (who will sell the marital residence) that charges a commission a lot less than other realtors.  Can the attorney use this information for his/her personal use, in selling his/her own home?  Maybe not, pursuant to the Disciplinary Rules, not without the client’s permission.   

      Many of these cases involve domestic violence criminal elements that also pose ethical challenges.  Where, during an appearance at the divorce proceeding, for instance, the attorney and his/her client are in the hallway and the other party assaults his/her client in front of the attorney.  That attorney may have to withdraw as counsel if he/she may need to be a witness in the domestic violence criminal trial.  Or the attorney may choose not to put his/her defendant/client on the witness stand, despite the client’s insistence, in a domestic violence criminal trial where that decision is based on their professional judgment.  By far one of the most challenging positions attorneys are put in is in circumstances where their client has disclosed the intention to commit a crime; there are several factors the attorney must take into account before exercising discretion in whether or not to disclose that information to the authorities.   

     Although many of these rules may be excused by another provision of the Disciplinary Rules, there are some that are explicitly prohibited.  Some situations are not as clear cut as others and require that the attorney exercise sound judgment.  Although I discussed several rules here there are many more that may apply in the described scenarios. The bottom line, it is not easy to have to juggle some of the most widely accepted, germane principles in morality with ethical requirements imposed upon us.  However, it gets to the point where we (at least for some of us) rationalize being forced to choose ethics over morality by the good we provide in the end.

     New York, as most states, has many concerns when it comes to ex-offenders who are seeking to assert rights in Family Court or family law cases.  And although the legislature, bureacrats and society at large claims to appreciate when someone has served their time, the reality is that when it comes to sensitive topics, such as custody of a minor child, an ex-convict’s past can and most likely will come back to haunt them.

     In child custody cases for instance, there is no law that states that having a criminal record automatically prohibits you from seeking or obtaining custody of your child.  The judge will consider a myriad of factors when making the determination ”the best interests of the child”, one of them can very well be the nature of any past criminal convictions.  On the other hand, a criminal history for egregious acts such as murder, manslaughter or sexual assault/rape may lead to a termination of parental rights.  Furthermore, if being incarcerated for a period of more than six months keeps the non-custodial parent from visiting with their child, then a termination proceeding may be instituted on the basis of “abandonment”.

     In child visitation cases, again the judge will weigh several factors based on the standard “the best interests of the child”.  This means that the non-custodial parent that has a criminal history may have visitation set forth based on the nature of the prior conviction(s), i.e. a mother who has a larceny conviction may be prohibited from taking her child to any retail establishments when visiting with her.  In instances where the judge believes the child’s safety can be jeopardized, based entirely on the previous convictions, he or she may order supervised visits until he or she is convinced that there is no longer a threat.   The standard is the same if the non-custodial parent is incarcerated at the time they seek visitation, ”the best interests of the child” prevails.  So if the judge thinks that it is emotionally and psychologically sound to have a child visit his or her parent in prison, then that judge will order visitation with specific instructions to faciliate visitation.

     An ex-convict may have a problem becoming a guardian based on his or her criminal past.  It is absolute that a convicted domestic violence offender, child abuser or violent or sex offender, for obvious reasons, will be precluded from becoming the guardian.  However, having a criminal background for a non-violent offense more than ten years, may not prevent the judge from awarding the petitioner from becoming the guardian of a child.  In these cases, the circumstances of the case will certainly affect how the judge will rule when faced with this dilemma.  Similarly, an ex-convict with these criminal convictions cannot become a foster or adoptive parent.

     An ex-offender has major obstacles when it comes to child support matters.  If an offender has a child support order issued from court prior to incarceration, that order does not terminate or is not suspended based on the incarceration.   While incarcerated, the non-custodial parent may file a downward modification petition seeking to reduce the amount based on reduction in income.  However, the court typically interprets incarceration as being due to a “willful” act of that parent and thus can deny the petition.  (If the child support is being paid to the Department of Social Services, then the petition may be granted.)  Upon release, though, an ex-convict will more than likely be responsible for any arrears that has accumulated, unless he or she can prove indigency (where arrears will be capped at $500.) 

     In Family Court order of protection cases, having a criminal conviction for a similar offense is highly prejudicial.  Domestic violence offenders will be tarnished in almost any family law issue regardless of the circumstances.  Family Court is established to protect families from offenders and thus will do little more than scratch the surface to find out the circumstances of prior convictions for violence against loved ones.

     Having a current criminal case and a past criminal history may have different circumstances depending on the case.  However, do not expect any leniency just because there has been no conviction yet, merely asserting innocence is not not enough sometimes. 

      There are many instances where a Criminal Court case and its outcome can negatively impact a party’s Family Court matter.  Although parents are expected to maintain a certain moral image, they are not impervious to the temptations or the distractions that can land them in Criminal Court facing a criminal charge, i.e. traffic infractions.  However, depending on the case the mere fact that they are before a Criminal  Court judge can destroy any hopes of receiving a favorable outcome in their Family Court case.  For instance, a minor traffic infraction may not be as detrimental to a party in his or her Family Court case, but if the defendant is the custodial or non-custodial parent with a custody case pending and the opposing parent informs the court that the alleged infraction occurred while the children were in the car, this may heighten the significance of the arrest from the court’s perspective.

     In child custody cases, the judge will use the standard the “best interests” of the child.  This means that a number of factors will be considered when making a determination of custody, which include who has the safest and most stable home, the means to provide for the child and who has been the primary caretaker.  One of the most important factors the judge will also consider is whether there is or was domestic violence in either home, if there is a criminal conviction for assault, battery, harassment or menacing this could tip the scale in favor of the other parent.  Similarly, if there is conviction for drug use, child endangerment or DUI the judge has no choice but to focus on the convictions when deciding what is in the best interest of the child.  Also, in child visitation cases, the judge will give great consideration to these when considering how much contact the non-custodial parent will have, the conditions of the contact and who should have contact with the child.  (If the criminal conviction landed either parent in jail or prison, the judge again will consider what is in the child’s best interest when deciding if visitation should be granted to the incarcerated parent.)

     In child support cases, a criminal conviction may limit the types of jobs the non-custodial parent can obtain.  If this is the case, in a downward modification petition for instance, the court can determine that since the conviction was or is “willful” that the request for a decrease in child support payments should be denied.  Similarly, if the conviction landed the non-custodial parent in jail or prison the obligation to pay child support does not end while incarcerated, so upon release the non-custodial parent will have accumulated arrears that are typically astronomical.  Typically, that parent will file a request for a downward modification and that the arrears be vacated, however, the court will more than likely deny these requests based on the “willful” theory. 

     In Order of Protection cases in Family Court or Criminal Court, the non-custodial parent must obtain a court order to have visitation with his or her child(ren).  This means that any pre-arranged visits or court-ordered visits are no longer valid. Unless and until the judge amends the visitation based on the terms of the Order of Protection any contact with the child(ren) may be a violation of the Order, resulting in a contempt charge. 

    In child abuse or neglect cases, the judge will certainly want to know if the parent facing a abuse or neglect charge has plead guilty to a similar charge in Criminal Court.  In fact, the Administration for Children Services will make a request for “summary judgment” based on the criminal conviction, which obviates the need to proceed to trial in Family Court. 

    Domestic violence brought up in any Family Court proceeding will definitely get the court’s attention no matter what.  Judges are trained to identify, to be sensitive and to effectively handle cases that involve domestic incidents, particularly where the parties are the ones involved, so criminal convictions for such related incidents will alert the judge to other possible issues.

     I always ask my clients if there are any arrests, convictions or similar contact with the police or courts.  Not only does this help me prepare for the case, but it gives me some valuable insight on who I am representing.

         In observance of October as Domestic Violence Awareness month, I have listed a set of laws that were passed this year specifically aimed at those victimized by domestic abusers.  Although New York’s legislators have made some strides, there is still a very long way to go.  Out of more than a couple dozen bills presented to the legislative body, these are the ones that actually passed both the Assembly and the Senate.  Here is the list:           

          Expanding Family Court Orders of Protection Allows all victims of domestic violence the right to seek a civil order of protection through the state Family Court System. Previously only married parties, parties with a child in common, or those related by blood or marriage were able to go to Family Court for a civil order of protection.  This amendment now avails those who merely had a relationship, whether they lived together or not, to go to Family Court.  (A.11707)          

         Merit Time for Domestic Violence Survivors Allows domestic violence survivors incarcerated for committing crimes against an abuser, as a direct result of the abuse suffered, to earn merit time and participate in temporary and early release programs.  Prior to this new law, only non-violent offenders were able to participate in temporary release programs.  This law serves to enable convicted and incarcerated defendants who suffered from domestic abuse the opportunity to rejoin society a lot sooner than other violent offenders. (A.6150)            

       Crime Victim’s Award This bill would help reduce financial hardships for crime victims by defining “necessary court appearances.” The bill would allow victims to be reimbursed for the transportation costs they incur while appearing in court proceedings related to the prosecution of their attackers. The crime victim compensation was previously narrowed to certain out of pocket expenses, i.e. medical costs, cost of repair or replacement up to $500, cost for residing in a domestic violence shelter, loss of income and cost of attorneys fees before the board up to $1,000.  Now transportation costs to court are included so this is no longer a deterrent for a victim to cooperate with the District Attorney’s office in prosecuting their abuser/attacker.   (A.6675)            

        Banning Plastic Knuckles This law adds plastic knuckles to the list of illegal and dangerous weapons. This broadens the list of weapons that causes serious physical injury. This law makes it possible to charge the abuser with possession of a dangerous weapon in addition to assault, battery, manslaughter or murder.  (A.10522)                  

          Orders of Protection and Gun Ownership Requires a judge, who is presiding over a criminal or family court proceeding, to inquire as to the possession of a firearm by a defendant under an order of protection. Although many judges inquired whether the alleged offender possessed any firearms, all too often many overlooked this important query.  Now this inquisition is mandatory.  (A.1497)    

      Creating a Criminal Penalty For Obstructing A Call for Emergency Assistance This law establishes that an act to intentionally prevent a person from making a call for emergency assistance is a crime. The measure is aimed at preventing domestic violence. This is now a misdemeanor crime, where previously it might have been considered when there were other charges against the abuser.  (A.614)

It is our duty to our family, friends, colleagues, neighbors who suffer at the hands of their abusers, whether it be physical, emotional or economic abuse to become active and remain proactive in affecting change.  This means keeping abreast of the bills being presented and contacting our local and state officials to ensure that all that can be done is in fact done to save these victims.

Feel free to contact my office to discuss your domestic violence case or any other family law issue.

          Last week I discussed jurisdictional issues that come up when a child and/or custodial parent relocates to another state and its impact on child custody and/or visitation with the noncustodial parent.  And although the UCCJEA and the PKPA certainly come into play in domestic relocation cases, the applicability of these federal statutes may be applicable in international custody and visitation cases as well.  The Hague Convention, however, will almost definitely apply in international cases but not domestic ones. This statute does not determine which state has jurisdiction, as do the other two federal statutes, but serves to have the child returned to the home country.

          The Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”) is a multilateral treaty (ratified by the U.S. in 1988) that sets forth an expeditious method to return a child taken from one member nation to another (not all countries have adopted the Hague Convention). The Hague Convention was drafted to insure the prompt return of children who have been abducted from their country of “habitual residence” or wrongfully retained in a country other than their country of habitual residence.  The Hague Convention seeks “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their “habitual residence”, as well as to secure protection for the rights of access.”  The primary intention of the Hague Convention is to maintain the  status quo of a child custody arrangement that existed immediately before the alleged wrongful removal or retention. The Hague Convention, however, only applies to children under the age of 16.
         The Hague Convention provides that the removal or retention of a child is “wrongful” whenever:
                 a).   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was “habitually resident” immediately before the removal or retention; and
                b). at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.” These rights of custody may arise by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of the country of “habitual residence”.

          Whether there is a court order for child custody or a mere agreement between the parents, or persons legally responsible, the Hague Convention can be invoked where the rights to care for the child are concerned.  “Habitual residence”, although is not defined by the Hague Convention, is typically determined by the court (state court or District court in New York have jurisdiction) on a case by case basis.  Unlike the UCCJEA and the PKPA, “habitual residence” is not determined by the child residing in a particular state for a period of at least six months.  Thus, the “home state” provision in these statutes is not applicable here. “Habitual residence” is usually the place the child resided before the questionable removal period, unless the move was done on consent or with the intention of the new place being the permanent home. Further, the court must look at the shared intentions of the parties, the history of the children’s location and the settled nature of the family prior to the facts giving rise to the request for return to determine “habitual residence”. 

          Additionally, the child must have been wrongfully removed or retained to invoke the Hague Convention, and unlike the UCCJEA and PKPA, the best interests of the child standard does not come into play.  However, there are defenses to the law, where the  parent that wrongfully removed  the child can prove that:
 
               1) the removal or retention occurred more than one year prior to the commencement of child custody proceedings in the “new” country; or
              2) the other parent was not exercising any visitation with the child at the time of removal or retention or acquiesced in the removal or retention; or
              3) a return of the child to the country (not necessarily the parent) would subject the child to a grave risk of harm, either physical or psychological (domestic violence cases are not an automatic bar); or
             4) the “new” country’s courts finds that a child of significant age and maturity to have his or her views considered, does not wish to return; or
            5) a return would not be permitted pursuant to the “new” country’s fundamental principles as it relates to human rights.

         Given these exceptions, it is imperative to commence a Hague Convention proceeding as soon as possible, for the longer the child remains in the other country the better the argument the removing parent can make that the child should not be returned. Also, it is crucial to establish and collect proof that this is the child’s “habitual residence” and that it was the intention of both parents to make it permanent.  This may not be as easy where a parent who is a national of another country, comes here,  raises the child here and can make a showing that there was always an intention to have the child relocate to his or her home country.  It is not uncommon for that parent to covertly establish a residence in that other country for themselves and the child, unbeknownst to the left behind parent, while living here and maintaining a life here.  This can certainly make the left behind parent’s evidentiary case quite challenging, unless that parent is diligent in amassing as much proof as possible to prove otherwise.  Also, contacting the U.S. State Department on Children’s Issues, the federal and state prosecutors, as well as other agencies should be put on notice as soon as the removal or retention occurs.

          Although there is no way of knowing for certain if a parent plans on absconding with their child at any point, it is always wise to take every possible precautionary measure to prevent such an act.  Having open and constant contact with the other country’s officials, hiring an attorney both abroad and here and being diligent all help to facilitate a safe and prompt return.

          There are areas of law that are esoteric in that they have very particularized principles, rules and laws that apply to only to that specialty.  It is often said that the area of family law encompasses a myriad of disciplines and therefore requires, at the very least, a basic understanding of many different principles in several areas of law.  One of those disciplines is criminal law, which certainly overlaps, if not collides in many instances, with family law.  Criminal law is one of those practices that require some understanding of its ramifications on the highly sensitive and very volatile area of family law.  I would like to address how the penal law statute, and the criminal procedure laws, apply in Family Court (and in Supreme Court in divorces) and thus impacts the overall outcomes.

          First, family offense proceedings, cases where the party is seeking an order of protection, is certainly one area where the criminal component comes into play. A party related by blood, marriage or consanguinity can get a civil order of protection in Family Court, and in Supreme Court if the parties are spouses in the middle of a divorce.  The order proscribes one from coming within a specified distance of another (including children) and/or from harassing, assauting, menacing, etc. that other party.  In addition, those circumstances, where the accused has caused some physical injury or serious physical injury, may also lead to an arrest of that party and is in fact very likely.  In the event there is an arrest, even though the Criminal Court may issue an order of protection, the Family Court may also issue an order based on the same set of circumstances (although the duration of the respective orders differ).  Although all Family Court cases do not warrant a companion criminal case, the court can certainly direct a litigant to the District Attorney’s office, the police or civilian agency if a criminal investigation is justified.  Conversely, however, a similar case that ends up in an arrest will not necessarily be directed to Family Court for a “civil” order of protection but the victim may certainly go to Family Court, particularly where there are children involved.

          Next, child abuse or neglect cases often have a criminal component, involving one or both of the parents or “persons legally responsible”.  Where a parent causes physical injury, serious physical injury or the threat of either, he or she subjects him or herself to possibility of a criminal charge of assault (physical or sexual), endangering the welfare of a minor or other related criminal charge.  In these cases, the police, as a “mandated reporter” must refer the case to the child protective agency.  If, however, the case gets to the agency first, the agency may refer the case to the District Attorney’s office for criminal investigation and/or prosecution.  Depending on the nature of the facts and circumstances, the case may definitely have both a Family Court and Criminal Court component comcomitantly.  The outcomes of both differ significantly, a criminal case subjects one to incarceration, probation, fines, etc, while a abuse or neglect case in Family Court may result in supervision by the agency, the child being placed in foster care and/or termination of parental rights (in addition to a whole host of services being provided to the family to ameliorate the initial problems).

          In child support cases, there is also the possibility of the application of the criminal statute.  Although there is a penal law section that is applicable to cases for non-payment of child support, these cases are rarely prosecuted.  Nonetheless, there are instances where incarceration may be imposed for a non-custodial parent who has been found to be “willful” in not making child support payments.  The penal law makes it a misdeamor or felony crime for failure to pay child support depending on the amount owed.  Although it is rare that parties are prosecuted on the state level for not paying child support, the law  remain on the book.  On the other hand, there is a provision in the Family Court Act that authorizes a judge to impose a period of incarceration of up to six months for a party’s failure to pay for no justified reason, although this is not considered penal in nature. 
 

          There are advantages and disadvantages to pursuing a case in Family Court as opposed to Criminal Court and vice versa.  These distinctions are based primarily on the different procedures, standards of proof, applicable provisions, etc. that are particular in each court. For example, in criminal cases the burden of proof is on the prosecution and the standard of proof is “beyond a reasonable doubt”.  This means that the prosecutor must prove that the party (defendant) accused of committing the crime did in fact commit the crime, by proving every element of the crime.  They must do this by putting on a case where there is not just a “reasonable” doubt but a doubt beyond what a reasonable person would have.  While in Family Court cases, either the agency ( CPS/ACS or Corporation Counsel) or the other party has the burden of proving that the party petitioned (respondent) did in fact commit the act alleged  The standard of proof in these cases is either a “preponderance of the evidence” or “clear and convincing evidence”, depending on the phase of the case. Additionally, other rules of evidence, i.e. hearsay, differ in their application, as well as the use and application of constitutional provisions. The penal law, criminal procedure law, the civil practice rules, as well as some administrative codes apply to criminal cases, while the Family Court Act, Social Service Law, Mental Hygiene Law, civil practice rules apply to family law cases.  Although some of these principles overlap, their applicability to the different cases determine the manner in which they govern, which ultimately affects the outcome of the case. 

          Of course there are sections of the penal law that apply regardless of which court the parties are in or the type of case.  Perjury, which is lying under oath; filing a false report/claim; forgery; contempt (although civil contempt is more likely); illegal possession of an official document are all criminal charges that may result from a case in Family Court or any other court for that matter. Since Family Court judges have no jurisdiction to proceed on a Criminal Court case and the power to prosecute is within the District Attorney’s office, if there has been a crime committed in a family law case, that court must refer the case for prosecution.  The discretion to prosecute lies with the District Attorney’s office, so merely referring a case to the office does not guarantee a criminal investigation or prosecution.  Family law issues that arise in Criminal Court do not necessarily need to be referred to the child protective agencies but certainly do not go unnoticed.  In other words, criminal cases that raises some issues of abuse or neglect or child support violations will certainly be addressed by the court but more often than not was already brought to the agency’s attention.  Again, since police officers are “mandated reporters”, they will call the agency at the time of an arrest therefore giving the agency the opportunity at the outset to file a petition.

          New York has established a courtroom specifically designed to handle the intersection of criminal and family law, where there is domestic violence.  The Integrated Domestic Violence Part’s main objective is to mainstream the overlapping issues, ensure  consistent rulings & outcomes and to provide trained workers to address the cornucopia of issues involved in these cases.  And although it certainly helps to have one judge hear all of the issues, both criminal and family law, there are times when a different set of issues result in the end.

           Feel free to contact us to discuss your criminal or family law case.

          March has been declared Ethics Awareness Month.  Although it started out as  a weeklong acknowledgement, by professionals in the financial industry back in 1990, it has since evolved.  Today is has been broadened to the entire month of March and to other industries acknowledging it.

          It is very challenging in family law, divorce law and criminal law cases to adhere to some of the ethical obligations attorneys are required to.  In New York, our rules are somewhat are nationwide standards imposed upon attorneys. So in child custody, child visitation, child support, paternity, divorces and domestic violence, sometimes the requirement to follow ethical obligations are often times countered by attorneys’ personal, moral and idealistic beliefs.  Particularly as the attorney for the child, there are too many times when my initial reaction is to do what is “right” as opposed to what is “ethical”.  However, because I took an oath that must be upheld, I always internalize my initial reaction and do what is “ethical”.  Here I want to explore some of the practical instances where both of these principles collide, particularly in representing the parents.

          In child custody cases, as the attorney for either parent, it is inevitable that personal beliefs about which one is the more “fit” parent arises.  In a situation where, for instance, the custodial mother has always been the primary caregiver-prepares meals for the children, dresses the children, tends to them when they are sick, takes them to doctors appointments, encourages practice of religion, encourages and supports social activities/engagements, fosters a relationship with the noncustodial parent but fails to encourage, support or get involved with their academics or school activities, should that custodial parent be provided with representation that supports her maintaining custody?  Or should the noncustodial parent who puts education first prevail in a child custody case?  Well, morally, depending on one’s own personal beliefs, one may say that there is almost nothing else in children’s lives that deserve more emphasis than academics.  However, as the attorney for that custodial parent, advocacy on behalf of that client must be done zealously.  Pursuant to the Disciplinary Rules, an attorney must not fail to carry out the contract of employment, shall not prejudice or damage the client during the professional relationship and shall advocate on behalf of that client zealously.  Furthermore, if the attorney is aware of controlling legal authority that is in the noncustodial parent’s favor in the same or very similar circumstances, he/she is obligated to reveal such information to the court if the other attorney does not, when presenting the case.

          In child visitation cases, conflict typically occurs when the custodial parent refuses the noncustodial child visitation or when the custodial parent insists on supervised visits.  As attorney for the custodial parent, unless there is proven history of domestic violence, child abuse or drug/alcohol abuse, exercising zeal and diligence in advocacy can be quite a struggle.  For attorneys who firmly believe that all parents should have free and unfettered access to their children, the tension in representing custodial parents who do not share in this belief presents a very difficult task.  However, pursuant to the Disciplinary Rules, the attorney must not intentionally fail to seek the client’s objectives through reasonable and available means, despite his/her personal views.  This, however, does not mean the attorney can not express his/her opinion; it just restricts the application of that opinion to the client’s overall objective.  In situations like these it is sometimes very helpful when the attorney for the child reports that the his/her client’s position or the attorney for the child’s position (where he/she substitutes his/her own judgment) actually supports the attorney’s personal view.  Conversely, as the attorney for the noncustodial parent who has been the aggressor in domestic violence incidents, the drug or alcohol abuse or the child abuser, the conflict is just as profound.  What is the attorney to do when the client/drug abuser discloses that he/she is still using drugs but continues to insist on visits.  Well, the ethical rules do not limit its applicability in this particular circumstance.  The attorney still has an obligation to advocate zealously on his/her behalf, not prejudice or damage the client and more importantly, preserve the client’s confidences (except where permitted by another Disciplinary Rule or required by law). 

         The same holds true in child abuse/neglect cases.  As attorney for the noncustodial parent who is the abuser, in domestic violence, child abuse or drug abuse cases, there is typically an overwhelming conflict in ethically representing the noncustodial/abuser parent.  Many times both parents, and/or “persons legally responsible”, may be parties in child abuse/neglect cases.  It is not uncommon for one of the parties to pay for both parties’ counsel fees (since it is a conflict for one attorney to represent both parties).  In a situation like this, it may not seem so odd that the paying party directs a) how the attorney represents his/her client; b) how the attorney advises the client or c) even how the attorney communicates with the client.  This however, clashes with ethical rules.  The attorney must exercise professional judgment solely on the client’s behalf, disregarding the desires of others where it might impair the attorney’s own judgment. 

          In child support cases, the challenge is not minimized just because the Child Support Standards Act governs.  There are still many situations where ethics are tempted by moral and personal judgments.  Many of us are sympathetic to noncustodial parents who have other legitimate financial obligations that limit their ability to provide for their children as provided by the statutory guidelines.  Noncustodial parents who have not and do not run from their obligation to support their children, are at times unduly burdened by the obligation mandated by the statute.  As the attorney for the custodial parent, it can be unnerving to know that the noncustodial parent may be forced to resort to, what most of us would agree, is somewhat demeaning living arrangement, particularly where that party has child visitation at that home.  However, again, the Disciplinary Rules does not permit personal views to compromise our ethical obligations.  In addition, as the attorney for the noncustodial father, particularly, even questioning paternity or filing a paternity action may pose an ethical problem if that attorney does so solely for the purpose of harassing or maliciously injuring the custodial parent. That attorney could not even advise his/her client to not pay the court ordered child support, even though paying is improbable, unless he/she has a good faith legal basis to challenge the order.

          In divorces, innumerable ethical obligations arise, putting the attorney in compromising positions.  Full disclosure in divorce cases is paramount to providing adequate and competent representation.  However, there are instances where it is tempting to advise a client to omit some information, not necessarily to mislead the other party but to avoid other consequences.  For instance, a client may want to leave out rental income on his/her Net Worth Statement because of possible tax implications.  However, ethically speaking an attorney can in no way participate in the commission of a crime, must try to talk a client out of committing fraud and must report the fraud to the court (as long as the confidences or secrets rules are not violated) if the client refuses to.  How about where the client mentions that after shopping around he/she found a realtor (who will sell the marital residence) that charges a commission a lot less than other realtors.  Can the attorney use this information for his/her personal use, in selling his/her own home?  Maybe not, pursuant to the Disciplinary Rules, not without the client’s permission. 

         Many of these cases involve domestic violence criminal elements that also pose ethical challenges.  Where during an appearance at the divorce proceeding, for instance, the attorney and his/her client are in the hallway and the other party assaults his/her client in front of the attorney.  That attorney may have to withdraw as counsel if he/she may need to be a witness in the domestic violence criminal trial.  Or the attorney may choose not tom put his/her defendant/client on the witness stand, despite the client’s insistence, in a domestic violence criminal trial where that decision is based on their professional judgment.  By far one of the most challenging positions attorneys are put in is in circumstances where their client has disclosed the intention to commit a crime; there are several factors the attorney must take into account before exercising discretion in whether or not to disclose that information to the authorities. 

         Although many of these rules may be excused by another provision of the Disciplinary Rules, there are some that are explicitly prohibited.  Some situations are not as clear cut as others and require that the attorney exercise sound judgment.  Although I discussed several rules here there are many more that may apply in the described scenarios. The bottom line, it is not easy to have to juggle some of the most widely accepted, germane principles in morality with ethical requirements imposed upon us.  However, it gets to the point where we (at least for some of us) rationalize being forced to choose ethics over morality by the good we provide in the end.

Feel free to contact my office to discuss your case.

          There is nothing more fundamental that being able to raise your child as you see fit.  One should conceivably be able to raise their child according to his or her own values, beliefs and ideals, without the overreaching and intrusive interference of the state.  However, if states were to leave this role up to the parents or legal guardians entirely, there would be no voice to protect the rights of the children, putting their physical and emotional well-being in jeopardy.  Each state has taken on the role of safe keeper of children, once the number of parents abusing their right to parent has skyrocketed, which ultimately resulted in an immeasurable number of fatalities.  In New York, Article Ten of the Family Court Act was enacted in 1969, as a result of the public outcry over the death of a young girl.  And although this statute was promulgated to protect children from abuse and neglect, it was the passing of the Child Protective Services Act of 1973 that directly addressed the reporting and investigating of child abuse and neglect cases in New York.  Under the Act, a Child Protective Service (“CPS”) office was established in each county, to encourage more complete reporting of child abuse cases, to investigate and prevent abuse and to provide rehabilitative services to parents, caregivers and children that were involved in such cases.  Allegations of child abuse and neglect cases provided to the State Central Registry by “mandated reporters”, which include medical providers, mental health professionals, law enforcement, daycare providers/workers, teachers and district attorneys, are investigated by the agency as they are reported.

            Although examples of child abuse are pretty obvious , i.e. sexually abusing, physically abusing, or allowing another to abuse the child in this way, child neglect cases can be a lot less identifiable.  For this reason, child neglect cases are more frequently investigated by CPS and brought before the court than child abuse cases, even though both may result in misdemeanor, felony and/or domestic violence criminal cases being brought in addition to the Family Court case.  Child neglect is when a parent or person legally responsible for the child, fails to care for the child and causes physically, mentally or emotionally to the child as a result or when the child is in danger of such harm because of the parent’s failure to care for him/her.   A parent, or person legally responsible, may be charged with neglect for failure to feed a child properly, failure to enroll or send a child to school, failure to seek medical treatment for a child, leaving a child home alone or with another child not old enough to watch the child, amongst many other.  There are many times when a parent, who happens to be faced with other life challenges, may unintentionally fail to act or to do something that is necessary to the child’s well-being.  Many of these situations should not necessarily rise to the level of an child neglect case but they do.  For instance, one of the most litigated child neglect case is when a parent uses corporal punishment to punish the child.  The laws in New York do not prohibit the use of corporal punishment; it prohibits the use of “excessive” corporal punishment or “unreasonable” physical force.  The New York Family Court Act and the Penal Law both address the extent to which parents’ may inflict physical harm on children.  The applicable provisions read as follows:

Neglecting a child includes unreasonably inflicting or allowing the infliction of harm or substantial risk thereof,  including excessive corporal punishment. (Fam. Ct. Act Sec. 1012).

Parent/guardian/other person with care and supervision of person under 21, can use non-deadly physical force when and to the extent he reasonably believes necessary to maintain discipline or promote welfare of person force performed upon. (Penal Law Sec. 35:10).

The difficulty for most parents comes into play when trying to discern what is “excessive” and/or what is “unreasonable” according to the law.  For example, in some instances the use of a belt to discipline a child is considered excessive and/or unreasonable, while in others the courts will dismiss a child neglect charge under such circumstances.  There is little uniformity in the definition of “excessive corporal punishment” or “unreasonable physical force” when it comes to the courts.  This is mainly attributed to the fact that bureaucratic and judicial decision-making are largely subjective in Family Court, leaving the consistency and fairness of the implementation of the child abuse and neglect laws up to the agencies.  Nonetheless, the key to determining if the line has been crossed, is first limiting the use of or refraining from the use of physical or corporal punishment altogether.  However, in instances where it is necessary to “maintain discipline or promote the child’s welfare”, some physical discipline may be justified from all perspectives.    

In other circumstances, however, where the child neglect case arose out of a parent’s failure to act, avoiding CPS’ involvement may be impossible.  Even when harm to the child was unforeseeable, not knowing that one should have done something may lend itself to agency involvement.  In a medical neglect case, for instance, where a parent fails to take a child to the doctor to be treated for an ear infection, his or her legitimate belief that an ear infection may eventually heal itself does not prevent CPS from opening an investigation against that parent.  This may not be fair considering the fact that some parents are much more experienced and savvy when dealing with less serious ailments, than the new parent, for instance.  Furthermore, in this day and age where many households are single parent, one wage-earner units, the practicality of acting in every instance is almost non-existent. 

Unfortunately, there is no surefire way to avoid CPS’ involvement in any scenario.  It’s almost as if choosing to become a parent automatically opens one up to the susceptibility of state intrusion to some degree.  A parent’s best bet is to know what not to do, than what not knowing what to do!  Communicating openly with physicians, school administrators, social service workers, etc. may not necessarily avoid agency intervention, but doing so may better prepare one to explain or defend his or her actions if questioned by the players involved.  

If you need to discuss your child abuse or neglect case, please contact my office for a consultation.

           Violence against women is a major cause of poverty and a huge barrier to economic opportunity throughout the world, not just here in the U.S.  It keeps women from getting an education, working, and earning the income they need to lift their families out of poverty. It impedes economic development because it can prevent girls from going to school, or stop women from holding jobs or inheriting property, or shut down access to critical health care for themselves and their children.  Efforts to wipe out AIDS and other diseases are compromised when women are beaten for telling their husbands they are infected.  Girls are less likely to attend school when they fear being raped by their teachers.  And research shows that giving women in poor countries economic opportunity empowers them to escape abusive situations.
            The good news is that violence against women is gaining in worldwide recognition and could be prevented successfully by actions taken by our leaders.  The International Violence Against Women Act (I-VAWA), is a groundbreaking piece of legislations that, if passed, would incorporate these solutions into existing U.S. foreign assistance programs. It would support local women’s organizations overseas that are working to to end violence against women in their countries. By promoting women’s economic opportunity, addressing violence against girls in school, and working to change public attitudes, the I-VAWA could have a huge impact on reducing poverty -  freeing women in poor countries to lift themselves, their families, and their communities out of poverty.   The I-VAWA (S.2279) was introduced in the U.S. Senate on October 31, 2007 by Senator Joseph Biden (D-Delaware) and Senator Richard Lugar (R-Indiana), the authors of the Violence Against Women Act of 1994, 2000 and 2006.  (”VAWA”)

“The International Violence Against Women Act marshals together, for the first time, coordinated American resources and leadership to address this global issue.  I believe the time is now for the United States to get actively engaged in the fight for women’s lives and girls’ futures, and we must begin by preventing and responding to the violence they face,” added Sen. Biden.
 
“We cannot expect to reduce poverty and decrease the spread of diseases such as HIV/AIDS until we have more equitable treatment of women in developing countries.  Empowered and educated women are the key to breaking these cycles,” said Sen. Lugar.
 

           It was developed by the lead sponsors in conjunction with the Women’s Edge Coalition (Edge), Amnesty International USA (AIUSA), the Family Violence Prevention Fund (FVPF), and the help of organizational partners. It is the result of joint efforts from several national women’s organizations, politicians and the United Nations.   Throughout the world, violence against women and girls is perpetrated within marriage and families by husbands, intimate partners and relatives; within communities by strangers and traditional leaders; in the workplace; across international borders as women are trafficked for sex and labor; and as a tool of war by military forces.

          The United States must continue to invest in a world where women feel safe in their homes, on the streets and at their jobs. This will enable them to build better lives for themselves, their families and their communities. Countries can take critical steps in ending violence against women by improving women’s status in society, enforcing laws to protect women and prosecute perpetrators, and offering treatment for women. The United States has the responsibility, has a global leader, to take very critical steps in ending violence against women by:
                     Increasing women’s economic empowerment and education
                     Increasing women’s access to health care
                     Improving security in humanitarian and crisis situations
                     Promoting legal reforms and social norms to address gender-based violence

The bill includes three major provisions to fight violence against women.

1.  It would create a central Office for Women’s Global Initiatives to coordinate US policies, programs, and resources that deal with women’s issues.
2.  It requires a 5-year comprehensive strategy to fight violence against women in targeted countries and provides $172 million a year to support programs that fight violence against women.
3.  It mandates training, reporting mechanisms and a system for dealing with women and girls afflicted by violence during humanitarian, conflict and post-conflict operations.

 

We can fight domestic violence globally and effect change collectiveyly! 

SO TAKE ACTION NOW.  VISIT http://takeaction.amnestyusa.org/ to sign the petition to pass this very important legislation!

          Since the enactment of federal and state laws, creation of national and local organizations and media attention to domestic violence a plethora of research, data, statistics, resources has been publicized.  There is extensive information about the impact of domesic violence, the preventioin of domestic violence and the treatment for domestic violence victims.  And although there are several channels by which this information is brought to the attention of the public, there are still many misconceptions about issues involving domestic violence.  We will disspell some of the most common myths about the effects of domestic violence, the approach to its treatment and measures for prevention.

Here are a list of some myths:

Myth:  Only a small fraction of domestic violence victims are men, the majority is women.
Fact:  While approximately 1.3 million nationwide victims are women   yearly,  approximately  835,000 are men. According to the Center for Diseased Control and Prevention.

Myth:  Domestic violence only affects women of color or immigrant women.
Fact:  Women of all races are equally vulnerable to domestic violence.

Myth:  New York has the highest per capita rate of domestic violence related fatalities in the U.S.
Fact:  As of 2005, the last year research is available, New York came in fifth.  Data provided by the NY Office for the Prevention of Domestic Violence.

Myth:  Most of the New York victims of domestic violence had an Order of Protection in effect when their abuser murdered them.
Fact:  For the past five years, 80-90% of the murdered victims had no current Order of Protection in place.  Data provided by the NYC Office to Combat Domestic Violence.

Myth:  Most of the men who abuse their spouses/paramours do not abuse their children.
Fact:  More than 50% of the men who abuse their spouses/paramours also abuse their children.

Myth:  Most abusers who petition for child custody do not prevail.
Fact:  70% of the abusers are awarded custody of their children.  Data provided by Stop Family Violence.

Myth:  Women have nothing to worry about when alleging domestic violence to a Family Court judge, their stories are always believed.
Fact:  Many judges are more likely to not believe women, thinking that they are just making these allegations as a strategy to gain custody.

Myth:  As long as children do not see the actual acts of domestic violence, they are safe from its effects.
Fact:  80-90% of children in domestic violence households are aware that it exists even if they do not witness it firsthand. Data provided by ACADV.org

Myth:  Fathers are more likely to abuse their children than mothers are.
Fact:  Mothers who were victims of domestic violence are twice as likely to abuse their children.  According to AAETS.org

Myth:  There is no effective treatment for batterers.
Fact:  Although Batterers’ Intervention Programs  have a small effect on treatment, the impact of treatment is significant especially when treatment is continuous.

            Although milestones have been made in getting the word out, providing help to the victims and getting treatment for abusers there is still much to be done.    Getting involved, staying informed and spreading the word only helps in the effort. 

 IF YOU OR ANYONE YOU KNOW IS A VICTIM OF DOMESTIC VIOLENCE, PLEASE DO NOT HESITATE TO CONTACT THE NEW YORK STATE HOTLINE AT 800-942-6906.