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.

      The New York state Assembly finally passed a bill that would allow divorcing parties to avoid the timely, costly and often, emotionally taxing requirement of “fault”.  New York was the last state in the country to enact such a law, making it much easier to divorce than previously.  Although most jurists approve of the legislation, there are many opposers of the new law (well the Governor has to sign it before it actually becomes law, which most predict he will).  Most of the opposition comes from women’s rights or religious groups that think that the new law would adversely affect many more women than men.  Their position is that if women are in marriages where they are economically dependent on their husbands, that the eliminating the requirement of “fault” would only empower husbands particularly where there were no other suitable “grounds“.  Others take the position that the opposing spouse, and the children of the marriage, do not benefit, particulary when that spouse has been the faithful spouse and willing to take their vows much more to heart than the other spouse. I would like to explain how these stances have little merit and how this actually allows for more freedom to women, and men alike.

      There are many times when I represent women who want to initiate a divorce but are afraid to actually proceed on any of the other legal “grounds”, believing that their husband would “lash out” against them in response.  In reality, there are cases where it is best to dissolve the marriage, whether it be for the economic, mental or physical well-being of either party and the children, where up til now it was not possible because there was no “no-fault” provision in the Domestic Relations law in New York.  So practically speaking, the wife could be stuck in a marriage that she felt was irreparable and, in a lot of cases, debilitating just because the law hampered her ability to move on (there are times when the wife and children are at an economic advantage only once the divorce proceedings get under way).   Although there are times when commencing the action based on one of the other “grounds” ( which are cruel and inhuman treatment, adultery, imprisonment, conversion of a separation agreement, abandonment and constructive abandonment) can be used as leverage by the wife, inciting the husband to cooperate and even settle, that is a much more risky gamble.  (Fact: There is data that reports that states that have passed “no-fault” divorce laws have seen a decline in domestic violence incidents as a result.)

     Conversely, if it is the husband who initiates the divorce action, which opposers to the new law says will skyrocket as a result, then in many instances (particularly cases like I just mentioned) this will only avoid the apprehension or the compulsion from the wife’s perspective.  A husband being the first to file does not absolve him of his responsibility to pay child support, maintenance (alimony), distribute marital assets and to pay counsel fees (if ordered by the court).  In fact, often times this obliterates the economic stronghold many husbands have over their wives by the court directing even interim support.  Further, many who strongly object to “no-fault” divorce claim that it will only serve the lawyers, judges and courts who handle these matters, but again there is little validity to such beliefs.  Eliminating the need for “fault” for the dissolution does not automatically determine child custody, child support, maintenance or property distribution, these issues must still be addressed by the court.  As for the moral issues, maybe this will force individuals to think longer and harder about marriage beforehand, and not getting married with the idea that legislation would force an unwilling party to stay in an unhappy or unfulfilling union.

      For all those involved, it certainly affords the opportunity for keeping legal costs down.  Although I earn a living dissolving marriages, I would much rather see parties spend their money on their children than expending thousands merely trying to prove to the court that they have not slept together for the one year that is required under the grounds of “constructive abandonment”.  When fault is required, the opposing party can unilaterally force the other party to expend massive amounts of time, energy and money by merely “denying” the allegations in the complaint.  The new law sets out to eradicate this power by leveling the playing field. 

     It will be interesting to see if the divorce rate does soar as a result.  In many states that have passed such laws, there are reports that indicate no difference in the divorce rate, attributing an increase or decrease to other unrelated factors, i.e.religion, maturity of the parties, etc.

     Believe it or not, the courts love to see that litigants managed to work together and come up with an agreement that resolves the matter(s) before it.  This includes settlement agreements with respect to child custody, child visitation, child support, domestic violence and divorce.  In fact, the court would even provide some guidance, assistance and even patience if they are confident that a resolution. that was negotiated between the parties in good faith, is likely.  To some extent, lawyers too are sanguine with a settlement that was devised by the parties, this alleviates some of the pressures of dealing with confrontation of the adverse party, opposing counsel and the court.

     In Family Court matters, preliminary issues need to be agreed upon before the case can proceed.  With regards to “service” on the responding party, if it was defective or was never effectuated but the responding found out about the case anyhow and appeared, he/she must agree to accept service or the case will be adjourned for proper service.  As for child custody/visitation cases, the consent of both parties for a Court Attorney/Referee to hear and determine instead of a judge is mandatory.  Again, if there is no agreement the matter will be prolonged since the judges are inundated with the cases they do in fact hear, and will hear a custody/visitation case according to its caseload.  However, substantive issues may be agreed upon at any stage of the case, but is often preferred as early on in the case as possible. 

      To facilitate child custody and child visitation cases being settled, the Family Courts will send the parties to mediation, if they all agree.  Mediation is the ideal place for resolution since experienced mediators, adept in resolving even the most contentious matters (except where domestic violence is involved), will give the parties the attention they need to address the underlying issues.  The outcome of mediation is usually an agreement that is forwarded to the court for its approval and signature.  However, there are times when the parties themselves, at the behest of the court, the lawyers or any other court personnel, are able to come up with an agreement with regards to which parent should get custody (or joint custody, which the court will only approve if there is no domestic violence and both parties agree) and the terms and conditions of child visitation.  The court may provide an outline of a visitation schedule that is pretty standard in New York (which is ultimately alternate weekends, an evening during the week, split holidays/school breaks/summer vacations) to assist the parties in devising their agreement.  As long as the parties agree on all of these terms, the court will more often than not approve their settlement and “so order” it or sign off on it, making it enforceable and subject to the court’s intervention if it’s violated.

      Child support, however, requires a little more formality as the Child Support Standards Act (”CSSA”) governs, even when the parties want to settle the matter amongst themselves.  The Family Court Act (”FCA”) states that: any agreement for child support must be in writing and must explicity state that the CSSA guidelines was applied, must set forth what the amount according to the statute would be and if the amount agreed to is different than the CSSA amount then an explanation as to why.  An agreement made between the parties without the court’s approval is not enforceable by the Office of Child Support Enforcement (”OCSE”), nor will it automatically be considered if the custodial parent decides to go to court later on.  So in essence, it defeats the purpose to come up with an agreement if the court does not “so order” it, since the circumstances around paying child support can become highly volatile and can be changed unilaterally if the court was never involved. 

      In domestic violence matters, the court (particularly Family Court) will welcome a negotiated agreement resolving “family offenses”.  The terms of a restraining order that are typically worked out include the duration of the order (ranging anywhere from 3 months to 2 years), the conditions (a “no harass” vs. “stay away”) and any special provisions, i.e. if there is a “stay away” but the accused has to retrieve personal items from the home they shared.  The court, or the attorney for the child (formerly referred to as law guardian), may intervene with negotiations when there are concerns for the safety of the children of the parties.  Otherwise, again, the court will “so order” or approve settlement accordingly.

      In divorces, settlements may involve much more than the parties coming to their senses and agreeing to resolve their own issues.  Because divorces are heard in Supreme Court, which unlike Family Court is not really “pro se friendly”, addressing all of the issues may demand much more professional input.  That being said, it is not impossible, nor is the incentive for settling ignored by the courts, it may just a bit more labor intensive and costly.  In contested divorces, those that have made it to court, there are usually property distribution issues, child custody, child visitation, child support and sometimes domestic violence too.  So one judge is addressing all of these issues, as opposed to Family Court where there may be more than one arbiter hearing these issues, and that just compounds things.  Although mediation is a method relied upon as well, there cases are usually much more in depth.  Attorneys are typically useful in facilitating a negotiated settlement, either by representing either party or by merely providing “unbundled” services, there are instances where there is no such luck and the case goes to trial.  The judge must approve the settlement, with all the same considerations of the Family Court judges, and will proceed to finalizing the divorce with the settlement becoming part of the record (if it is “merged”, which is most often the case.)

     The way things are going this day and age, it is advisable to attempt to resolve any family law issue before seeking court intervention.  Not only does it save time and money, but it also relieves all those involved of the tension, discontent and antagonism that typically accompanies these sensitive topics.  Even as an attorney, I welcome anyone who comes to me with a proposed agreement, giving me the opportunity to effectively and efficiently provide my services to the parties while keeping their legal costs to a minimum.

      Many of you might have already heard, in the news, by your attorney or by someone affected by the case itself, that a Nassau County Supreme Court judge recently ordered a custodial mother to six weekends of incarceration for repeatedly alienating her child from the non-custodial father.  This decision has gotten the attention of practitioners across the state (and beyond) and the media, even being featured on Fox’s “Good Day New York” this past week, which included an interview with divorce attorney Raoul Felder. 

      The Honorable Justice Robert A. Ross ruled that the custodial mother, willfully violated the court order for child visitation by deliberately alienating the elementary school aged children from her ex-husband, the children’s non-custodial father.   Justice Ross stated:

 ”the evidence before me demonstrates a pattern of willful and calculated violations of the clear and express dictates of the parties’ Stipulation of Settlement. The extensive record is replete with instances of attempts to undermine the relationship between the children and their father and replace him with her new husband, manipulation of defendant’s parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct without any semblance of ‘good faith’ and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father.”  

The judge made his decision after hearing 23 days of testimony on a motion for contempt filed by the father.  The basis was that the mother violated the agreement that the parties made, in a Stipulation of Settlement as part of their divorce action, which included more than a dozen instances of interference or alienation.   Additionally, the mother made allegations of sexual abuse against the father, which the judge debased her for and found as being “baseless” and “not made in ‘good faith’…”. 

      Although this decision is monumental in the legal community, many legal scholars are concerned about how the Appellate Division will rule on appeal.   This judge did exactly what he had the power and authority to do under Section 753(A)(3) of the Judiciary Law when there is a motion for contempt before him.  Although an order for change of child custody is within the court’s powers where there is alienation and false allegations of abuse, this court ruled under the contempt portion of the father’s application thereby issuing penalties pursuant to the laws concerning contempt.  “Civil” contempt is when a party fails to obey a court order, where there is a court order explicitly set forth a mandate and the contempting party had knowledge of the order.  Penalties include a fine or confinement to jail, or both depending on the circumstances.   In family law cases, the judges rarely impose such harsh penalties as imprisonment because contempt is not really to “punish” the violating party per se but is merely an incentive to gain compliance to the court order.  In family law cases, which are typcially very volatile and vitriolic, the court will attempt to temper flames by issuing warnings or explicit directives.   But in this case Justice Ross, who is esteemed for being astute at discerning the facts as they exist, felt that the mother’s actions were so egregious and consistent that jail was the only suitable recourse (although he is considering a change of child custody too.)

      In alienation cases, particularly, it is very difficult to get the court (especially Family Court where the matter is heard before a hired Court Attorney/Referee instead of an elected or appointed judge as in Supreme Court) to adequately address the alienating parent’s behaviour, and deterring any future alienation.  Not because they do not have the power (as is evident here) but because they are afraid to rule against the custodial parent when allegations of abuse are made.  New York happens to be one of the states that has extensive resources to investigate, assess and intervene with alienation cases, as opposed to many other states where the judge is to basically rely on his or her own knowledge to discern the truth.  The New York courts use law guardians (now referred to as attorney for the child), forensics evaluators and child protective services to assist it in exploring the veracity of abuse and alienation.   So in cases where the judge is faced with “he said, she said”, there are vehicles in place that can help it to find the truth, minimizing erroneous or unjust findings.  Nevertheless, the courts are still reluctant to act, particulary where a change of custody is requested.  They are more inclined to order the parties to undergo extensive therapeutic and psychological intervention instead.   While basing their decision on “the best interests” standard, the court usually finds that evidence of alienation does not warrant a finding that the alienating parent is “unfit” which would justify a change in custody to the alienated parent.

      I recently attended the Association of Family and Conciliation Court’s annual conference in Denver, Colorado which focused on parental alienation.  The conference included all the players in assessing, treating and adjudging alienation, which included psychologists, social workers, therapists, parent coordinators, parent educators, judges, lawyers and everything in between.  And although it was refreshing to see that attention to this issue is gaining momentum, there is still a lot to be done.  Judges, court personnel, etc. need to be made aware of the reality of parental alienation.  Educating the key players is the only way the courts will take Justice Ross’s stoic position and affect change.

     In light of the upcoming Memorial Day holiday, I decided to discuss how being a member of the U.S. military has impacts on divorce, child support and child custody or visitation cases in New York.  For the most part military personnel, active, retired or otherwise, have the same obligations to support their spouses and/or children as civilians do.  However, there are certain provisions that distinguish them because of their primary obligation to serve, which sometimes limit their availability or resources.

Let’s start by taking a look at divorce, particularly contested divorces since that is where the major issues arise regarding a spouse who is or was a military person.  In New York, this applies to both contested and uncontested, the “notice” requirement is the same.  Whether the spouse filing is the active member or the civilian, the other spouse must be personally served with the Summons (the notice) for divorce.  This requires that that person be the one who actually receives the notice that there is a divorce action pending,in person.  However, although federal laws protects active members from being found in “default” or from “losing” their right to defend against the action.  Nevertheless, the court has the discretion to postpone the divorce proceeding  until the active duty spouse is no longer deployed and sixty (60) days beyond (particularly when they are deployed during a war) if he or she requests it.  (Referred to as the Servicemember’s Civil Relief Act.) That spouse may waive such postponement if they wish to proceed and resolve the divorce, making arrangements with the court for his or her appearances (usually by counsel).  However, with regards to spousal support or property distribution, the federal law prevails and sets forth how the property of the active member spouse is to be distributed.   The Uniformed Services Former Spouses’ Protection Act (”USFSPA”), governs how military property is to be calculated and divided for active members and retired members alike.  For instance, the USFSPA will not make “direct” payment of the member’s retirement benefits, unless he or she has been married for ten years or more while on active duty, to the other spouse.  However, the court may do an “offset” to other property, i.e.the marital home sale proceeds, regardless of the length of the marriage.  As for military disability benefits, the court cannot use those benefits to determine distribution but those monies may be used to determine child support or spousal support.

As for child support, the statutory calculations apply to military personnel the same way it applies to civilians.  However, child support and spousal support deductions may not exceed 60% of a military person’s pay and allowance.  This means that the cases where there are multiple child support orders against a non-custodial, a spousal support and child support order issued or circumstances that could result in the non-custodial’s earnings being reduced to the poverty level (or the 65% maximum permitted by the Consumer Credit Protection Act), if he or she is an active member, the law would prohibit this from occurring. “Add-ons” are also applicable, pursuant to the NY child support statute, with regards to military members.

Child custody or child visitation also have some specific consideration with regards to military members, custodial parents who are members are particularly affected.  Custodial parents who serve in the military are prohibited from “losing” custody based solely on the fact that they are deployed.  In fact, in most cases if the custodial parent is deployed, guardianship may be granted to another family member to establish a legal safeguard against a change of custody case.  However, another more difficult set of circumstances are involved with regards to relocation cases, when the custodial parent relocates as a result of his or her military obligations.  In these cases, the court will use the legal standard “the best interests of the child” to determine, among other things, if the move will unfairly impact the bond or parent-child relationship with the non-custodial parent.  Furthermore, when considering the fact that move is primarily for military reasons, the court can permit the move with allowances and/or conditions being put in place for the non-custodial parent to maintain contact.

Although being involved in a family law matter while in the military has its own set of considerations, the federal government enacted legislation that serves to protect this particular group from the harshness and unfairness that can be imposed when circumstances make it difficult to proceed or defend in a legal action.  New York state, too, has procedural safeguards that serve to safeguard the rights of our soldiers.

By the way, not only is adultery is a grounds for divorce in New York it is also considered a “military offense” punishable by the U.S. government.

      I am so excited that the healthcare reform bill has finally been passed.  Not only for myself but for my clients who opt out of certain divorce settlements because of the cost of obtaining their own healthcare coverage.  For instance, a client of mine recently spent several years and several thousand dollars trying to settle a case only to agree to a Separation Agreement so that his ex-wife can remain on his health insurance since she had a pre-existing condition.  Up til now, well actually not until 2014 when the pertinent provision goes into effect, health insurance providers were able to deny coverage based on pre-existing conditions or they would charge astronomical premiums for this group.  In fact, part of the basis for the Domestic Relations Law, Section 177, enacted in 2007, was to put all parties on notice that the provider/spouse may no longer be required or permitted to continue coverage for the non-provider/spouse.  Oftentimes it was the wife, especially unemployed or underemployed wife, who was covered by her husband’s health insurance and was not aware that his employer prohibited continued coverage once the parties divorced.  This created a huge problem for many women, particularly  middle-aged and older, when it was difficult for them to obtain coverage on their own since they are more susceptible to particular illnesses.  If they are of Medicare age then not so much, but the younger wives had very few options.  Additionally, in non-maintenance divorces, having the resources to obtain health insurance was almost impossible, even more so when the wife had a pre-existing condition.  So now, under this new law, more uninsured and “uninsurable” will be covered by one provision or another.

As for child support, the cost of health coverage is an “necessary add-on expense”, which is added to the basic child support obligation of the non-custodial parent.  This meant that in cases where the basic child support amount already consumed most of the custodial parent’s disposable income, that the cost of adding a child to his health insurance made the circumstances even worse especially if the child had major health issues.  Now, since this portion of the healthcare reform goes into effect immediately, no insurance provider can deny a child with pre-existing condition and thus the custodial parent’s cost for maintaining coverage does not have to send him to the poorhouse.   On the other hand though, the provision that states that providers can no longer “kick off” dependents once they reach 18 years old will certainly create a burden for the non-custodial parent.  In New York, the child support obligation terminates at the age of 21, unless emancipation occurs before then, but the add-on expense of maintaining health insurance coverage ended at 18.  So now, the custodial parent may petition the court to continue coverage until at least 21, since the legislative and judicial branches deal with how the new bill affects that provision of the Family Court Act.

Child custody and juvenile delinquency cases are also affected by the new law.   Since serious health concerns of the child and the ability to provide for them may be a factor in custody determinations and many juvenile delinquents need therapeutic/psychological treatment, ensuring  that coverage will be intact will affect how the courts address these issues.  Despite the fact that Medicaid, and other government sponsored programs, covers millions of children in New York there are still many who were not eligible for any of these.  For more information go to www.healthcarereform.gov

     I don’t know anyone who does not have a Facebook, Twitter and/or Myspace account these days.  And although these social networking sites are constantly trying to adjust their sites to take into account recurring issues of privacy, usability and popularity, if you interact with these sites in any form there is a possibility of your posts being admitted into evidence (although other legal issues may arise from such accounts, i.e. defamation, investigating witnesses or jury members or proof of criminal activity) in your contested divorce or child custody, child visitation or child support matters.  Not only are parties savvy enough to check here to keep track of what is going on with you, but lawyers too are relying on information posted on these sites to assist them in prevailing in thier case in court.

     Let’s look at some of the legal implications that pertain to your divorce.  First, in a contested divorce on the grounds of adultery, the Domestic Relations law in New York states that:  adultery is the commission of an act of sexual or deviate sexual intercourse, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of the plaintiff and the defendant.  Proof of adultery is the burden of the plaintiff (or the party alleging adultery) and although it does not require “direct” evidence, circumstantial evidence must be “corroborated” in most cases.  This means that a party direct testimony admitting adultery or a spouse’s direct testimony, is not enough.  Corroboration means that someone other person, not a private investigator or prostitute, must provide evidence of the adulterous acts.   So, if the adulterous spouse’s paramour leaves some telling pictures, posts, etc. on his or her Facebook page, that person may be subpoenaed to testify in your divorce trial.

     So you have a child support matter pending.  The non-custodial parent is claiming that he or she is unemployed, underemployed or merely lying about facts surrounding employment.  Particularly in a case where that party claims to be unemployed but has a “side” job that brings in some income.  He has a page that either promotes his coveted job or has “friends” that have used his services and make posts that support this.  Although, this may not be enough to prove the amount he or she actually earns at this “side” job, it certainly opens up the door to investigating the basis child support obligation further.  

      Similarly, in child visitation or custody cases the posts may open up the door to exploring facts in dispute between parties.  Although in child visitation and custody cases, not only are the parties’ entries up for scrutiny, but when the children have an account and make posts it may give either parent additional ammunition against the other based on the content of the posts.  Issues of inappropriate behavior, missed or denied visits, disputed interactions, scheduling conflicts or other violations are susceptible to being either supported or discredited when the parties have active accounts on Facebook. 

     As an attorney, I have not gotten to the point where I automatically do a search on Facebook to find incriminating evidence in my contested divorce, child visitation, child custody or child support cases.  However, I will encourage my clients to do their own due diligence and find whatever they can on any of the social networking sites.   Once they do, I will then discern what I will explore further.

Currently there was a huge media case involving a child that was abducted by his biological mother to her native country of Brazil and the biological father, in New Jersey, spent several years and several hundred thousand dollars to get his son back.  Several laws came into play, despite the fact that the child was the biological child of the the U.S. citizen and the biological mother died. I want to take a brief look at what typically happens in a case like this one, where the state, the country and the foreign country stand in their respective roles with regards to the laws.

All fifty states have adopted the International Child Custody Jurisdiction Enforcement Act, and some including New York has adopted the revised Uniform Child Custody Jurisdiction Enforcement Act, (”UCCJEA“) in 1999.  This Act makes the initial state or the child’s “home state” or “residing state” the state that has initial and exclusive jurisdiction to determine child custody, even in international cases.

The International Parental Kidnapping Crime Act (”IPKCA“), makes it a crime for the removal or retention of a child from the U.S. with intent to obstruct lawful exercise of parental rights.  While the Parental Kidnapping Prevention Act (”PKPA“) states that other states are to give “full faith and credit” to the initial state’s child custody order and thus they are to enforce and not to modify that state’s order.  The difference is that the PKPA does not apply to international child custody cases.

The Hague Convention on the Civil Aspects of International Child Abduction (”Hague Abduction Convention“), adopted by member countries, offers an expeditious remedy of return of the child to the country of habitual residence so that authorities in that State may adjudicate the custody dispute between the parties.  International Child Abduction Remedies Act (”ICARA“) is the statute that implements the Convention, allowing a Hague case to be brought in the state or federal court where the child is located.  Unlike the other statutes, the Hague does not provide for jurisdiction to hear custody matters. If return of the child to another Contracting State is not required by the Hague, then power to hear custody case will be determined under that state’s own jurisdictional rules. As of May 2007, the Hague Convention is in effect between the United States and: Argentina, Australia, Austria, Bahamas, Belgium, Belize, Bosnia & Herzegovina, Brazil, Bulgaria, Burkino Faso, Canada, Chile, China (Hong Kong Special Admin. Region 1) Macau, Colombia, Croatia, Czech Republic, Cyprus, Denmark. Dominican Republic, Ecuador, El Salvador, Estonia, Finland, France, Germany, Greece, Honduras, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Lithuania, Luxembourg, Former Yugoslav Republic Of Macedonia, Malta, Mauritius, Mexico, Monaco, Netherlands, New Zealand, Norway, Panama, Peru, Poland, Portugal, Romania, Serbia, Slovak Republic, Slovenia, South Africa, Spain, St. Kitts and Nevis, Sweden, Switzerland, Turkey, United Kingdom, Bermuda, Cayman Islands, Falkland Islands, Isle of Man, Montserrat, Uruguay, Venezuela, Yugoslavia, and the Federal Republic of Zimbabwe.  (There is currently Congressional efforts being made to get Japan to join since they are of the few countries that awards only “sole” custody and that is typically to the mother.)

So what does this all mean, in short?   If there is a child custody order issued from Supreme Court (as part of a divorce) or Family Court and the non-custodial parent kidnaps the child to another state then the UCCJA and the PKPA may both apply.  The UCCJA is superseded by the PKPA in some instances, i.e. where “emergency” situations exist which requires the state where the child is currently located to exercise jurisdiction in some instances.  Conversely, there are cases where the UCCJA applies and the PKPA does not, where the child custody order was issued by a foreign country.  If there was no child custody order issued by any state  then the PKPA is invoked and states that only the “home state” has jurisdiction. Or if there is a child custody case pending in another state, the court in the current state cannot have jurisdiction unless the initial court stays the proceedings, declines or in some way stops exercising jurisdiction.   However, if there is a child custody order the PKPA may still apply, the difference is that under the PKPA  international orders, orders that are not actually custody orders, and orders that are invalid under the PKPA’s own set of rules do not have to be enforced under the PKPA. Neither of these statutes actually give any court to determine custody, procedurally or substantively.  The Hague would only be invoked when the abduction is to another country, whether or not there is a child custody order.  The Hague applies even the parent that did the abducting has an order for custody from the new country.

In New York, one would petition the Family Court for enforcement or modification of a child custody order under the UCCJA based on it being the child’s “home state” or based on temporary or “emergency”jurisdiction.  A case under Hague would require a petition be filed in federal court.

A full analysis of the international, national and state laws with regards to child custody, abduction and/or kidnapping requires a lengthy discussion.  If you need additional information please feel free to contact my office directly.

         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.

          I wanted to get the word out about this very important workshop that is being  sponsored by the Real Dads Network.   This program is a comprehensive program focusing on the issues that many unemployed and underemployed dads are facing.  This topic is very important because as many of you know from reading my blogs, non-payment or inconsistent payments of child support can have some very dire consequences.  And given the unfortunate circumstance of not being able to hire an attorney, many pro se fathers wind up being incarcerated for a period, losing their job, their home, etc.  This program will provide some very vital information and resources for fathers, young and old, on where and how to seek help when faced with these tough issues.

                  Here is the information:

                 Dads Embracing Fatherhood (DEF) Fatherhood Initiative program “Where Attitude Counts”!

                        Contact person: Theresa Dobie at 718-302-2057 ext. 202

                        Start date: Thursday, October 16, 2008, 6-9 pm and every  following Thursday for 10 weeks at the same time. Location: 790 Broadway, 2nd floor, Brooklyn, NY.

                        Incentives Provided: intensive case counseling, court advocacy, education on child support & Family Court system, relationship workshops, financial literacy workshop, family mediation and parenting workshops, money stipends totaling $250.00, carfare allowance and dinner provision for each workshop.

                      Requirements: Be unemployed or under-employed at the time of enrollment, have a current child support order, age limit 45 and under, must provide documentation for all requirements, able to commit to 10 week workshop schedule.

  For those of you that attend, please contact me directly to let me know how it helped.