Are Budget Cuts Creating Hardship for Our Children?

“The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world.” - Charles Dickens



It is no surprise that there have been severe budget cuts in New York State’s court system in the last fiscal year. Most of them came in May of 2011, some followed in the Fall and others in December.

The New York Law Journal’s article on January 20 entitled “Family’s Plight Illustrates Adverse Effect of Budget Cuts on Courts”, highlights the way in which children suffer as a result of the “system” where children end up getting removed from their parents by Child Services and linger in foster care because a judge’s hands are tied by time frames imposed as a result of budget cuts.

Current New York State budget cuts require courtrooms to close at 12:30 pm which is a half hour before the regularly scheduled lunch hour (usually 1 to 2) and at 4:30 in the afternoon, a half hour before the regularly scheduled closing time of 5:00 p.m. These time frames are enforced strictly to avoid overtime pay for court personnel and judges are required to adhere to the schedule. Therefore, at 12:30 or 4:30 if lawyers are “on the record” and even if a person is in the midst of a sentence, the judge is required to stop the proceeding and adjourn the case.

This seemingly “minor” change can result in dire consequences for families and children, who are forced to be parties in the Family Court system. The absurdity of the process was clearly demonstrated by a recent Brooklyn family court case, which involved a 7 year old boy, Jesse Lugo, his sisters and his parents, who were living in a homeless shelter. On Dec 8, the father was badly beaten by three men in the shelter and according to the police report, he was taken by ambulance to King’s County Hospital where he was treated for multiple injuries. The mother was not at the shelter at the time and was not expected back.

The three children who are 7, 9 and 14 were left without adult supervision, so the police took them to a residence in Manhattan for children who are waiting for placement in foster homes. They remained there overnight. The following day, child welfare workers from the New York City Administration for Children Services (ACS) filed a neglect case in family court against the parents. When ACS files a neglect case, the agency usually has reason to believe that the children have been neglected or mistreated by their parents. Here, ACS assumed that since the father was in the hospital and the mother was not at the shelter but presumably at a drug rehab facility, the 3 children had been neglected.

The case came before a judge at 3:45 PM on Friday, December 9. The judge was already trying to juggle two other neglect cases, one of which required a translator, so he gathered all the lawyers and reminded them that the courtroom had to close at 4:30 to avoid overtime. This particular case, was called at about 4:15 but at that hour the judge said he wouldn’t be able to handle the case and it would have to be held over until Monday. The ACS attorney asked for an order authorizing the children to remain in their care, away from the parents for the weekend. The mother, in the meantime, told her lawyer that she was not in a drug rehab but she was actually at that time serving 3 days at Riker’s island for failing to report for community service as a result of a year old subway turnstile jumping case.

Unfortunately, on Monday all seven judges assigned to hear neglect cases were supposed to be in a training session so the case was adjourned to Tuesday, December 13. At 4:29 PM, the judge ordered the children to remain in the care of ACS. As a result of this ruling, over the weekend and until Tuesday, the 7 year-old was sent to one foster home and his sisters, who are older, were sent to another. The children remained separated from their parents and from each other for the next 4 days. When the case reconvened on Dec 13, ACS changed its mind and asserted that the children could now return to the parents.

Unfortunately, this nearly Dickensian saga has not been a single unusual occurrence. Rather, the bureaucratic failings and deficiencies of an already broken ACS system have now been exacerbated by the time frames imposed as a result of another bureaucratic deal, - between State government and unions.

The poor victims of this particular case, the children, were already in the shelter, and instead of helping them, our system served to traumatize them even more. They were removed from their parents, put in a temporary foster situation, then, even worse - separated from each other and put in two separate foster homes for 4 days, after which our illustrious ACS came back and said OK you can now return to your parents and be united with your family. Will the government then pay for therapy that these children will need to get over their ordeal? Incredible!

Sadly, results of this kind are all too common. The only difference now is that as a result of strict time frames in the courts, the children are likely to linger much longer awaiting decisions on their lives. Before, conscientious judges would keep their courtrooms open until 7:30 or 8 PM or even work as late as 11 to ensure that the children’s needs were appropriately met. Unfortunately, this is no longer happening. They are calling it a culture change, but I think it is a lot more severe than that. It’s understandable from my perspective that there is a financial piece and there are budget cuts and union rules, but the effect of such cut-backs in Family Courts falls on the most vulnerable members of our society, - our children. The purpose of Family Courts is to act in the best interests of children and not let them get lost amid the power struggle between State government and Unions. Something urgently needs to be done.


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How Do You Find and Select a Good Lawyer?

 

“The leading rule for the lawyer, as for the man of every other calling, is diligence.” - Abraham Lincoln

It’s very important that the attorney you work with has experience and is specializing in the specific areas that are of interest to you and that you want to pursue. But how can a client find out this information?

Google seems to be the default method lately, but all that Google does is to lead you to lawyers or people who market themselves the best. It doesn’t necessarily mean that they have the experience needed to deal with the situation for which the person needs an attorney.

Here is a list of ideas to follow:

1.   An attorney has to be an attorney.

This statement may seem really laughable, however, many clients have appeared in my office over the years, especially clients for whom English is not their first language, saying something along the lines of the following: “I was involved in a car accident. I found an attorney in a Russian language newspaper. I signed some sort of papers and since then I have no idea what is going on with my case.”

Something like this can happen in real estate cases, matrimonial cases or other general legal matters that are very important and take a certain amount of time to conclude. Usually I ask these people to give me the name of the attorney and the phone number of the firm. Sometimes, when I make a phone call and ask a few leading questions, it turns out that the person with the Russian name who is the main contact person for the client is not an attorney at all but some sort of middle man who meets with a client and then shuttles the matter to an attorney. The client never really sees or deals with this lawyer and never really understands who represents him and/or if that person is competent.

2.  Does your attorney have the right to practice law?

In New York State, checking on whether your attorney can practice law is fairly easy to do. All attorneys must complete a bi-annual statement and pay dues and each of them has a distinct id number. All that is needed is to go to nycourts.gov (make this a link) and click on the attorney tab. The site has a directory of all lawyers who:

• are licensed and in good standing;
• have not been disbarred or suspended;
• are paying their dues; and
• have been admitted to the Bar in the State of New York, which means they are allowed to practice in the state of New York.

This directory is online and a client can very easily confirm that a lawyer is:

• licensed to practice;
• that the license is not lapsed;
• that the license is not suspended; and
• that he or she has not been disbarred.

This is extremely important, especially important in cases where a client is giving money to the lawyer to hold in an escrow account.

It is also important to check that your attorney has the right to practice in the state where your case is taking place. For example, if an attorney has a license to practice in New York but you have a family law matter or a negligence matter in New Jersey, it is very likely that your attorney is going to have to delegate or refer most of the work to someone who is licensed in New Jersey. Your New York lawyer cannot really handle the matter without having a New Jersey license.

3.  Meet your attorney.

If you are hiring someone to work for you and are paying them a “salary”, you would not do so without first interviewing that person. Every client has an absolute right to meet with his/her lawyer.

Beware of lawyers that are promising to get you absolutely everything you are asking for.

Beware of lawyers that have not responded to your phone calls or to your letters.

Be aware that when the case is pending you, as the client, have the right to receive copies of all papers related to your case. You have the right to receive regular bills and the right to receive status updates on the progress of your case.

4.   Be sure you understand the retainer agreement before you sign it.

Usually when you meet with an attorney, you are asked to sign a retainer. A retainer basically is an agreement, which may be very simple or very complex, which describes the financial arrangement and the scope of work that the attorney is going to be doing for the client. In New York State, any matter where the attorney’s fee is expected to be at $3,000 or more, requires a written retainer agreement to be signed by the client.

Make sure that you very carefully read the retainer agreement together with the attorney. If you have doubts or are not clear, take the papers home, speak to some friends and relatives to help you go through the document because sometimes the legal language is a little difficult to understand. Do not rely only on the explanation the attorney, or a secretary in the attorney’s office, gives about the retainer.

5. Don’t be afraid to get a second opinion.

If you have started the case but are not thrilled with the attorney you have, I recommend that you go to someone else and get a second opinion just to make sure that your case is being properly handled. You always have the right to switch lawyers and usually if there is a retainer amount of money that you pay up front, the lawyer is only allowed to keep the earned portion of that retainer. That means that if you gave an attorney $25,000 and three weeks later when the attorney has done 5 hours of work, you decide to switch to another lawyer, the first lawyer can only retain a reasonable amount for the hours actually spent on the case and needs to refund the rest to the client.

However, there are certain retainers that provide for a minimum fee and they are legal and enforceable. Be very wary of these retainers before you sign them because if you switch lawyers or if your case ends very quickly, there may be a certain amount of money that the lawyer will receive, even if it is more than the actual number of hours spent on the case.

Overall, the process of hiring an attorney is probably the most important part of a case, regardless of what area of the law that case is in. How you start, the lawyer you select, the personal relationship that you have with the lawyer, the financial relationship, and the understanding of the process as you go along are probably the most critical elements of a successful case.

 

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A Good Divorce?

“What do we live for, if it is not to make life less difficult for each other?” – George Eliot

Some people think that having a “good divorce” is an oxymoron. In her October 28th NY Times article entitled “The Good Divorce”, Susan Gregory Thomas admits that “. . . there is precious little upside to divorce. “ She goes on to talk about how she and her husband were able to focus on their children rather than focusing on their pain, hostility and feelings of betrayal as they were going through the process.

According to statistical studies, people are marrying a little later in life, and tend to live together for a certain period of time before they decide to officially tie the knot. Couples who live together before they marry are often able to successfully overcome the obstacles inherent in the initial period of cohabitation between two strangers. If they become friends, their marriage generally strengthens. Sometimes, however, even these marriages don’t work out, but when they fail, they fail “differently”. Couples that have been good friends during their marriage tend to approach their separation and divorce very differently than those who married in the midst of their passion, and had a heated marriage followed by a very heated divorce.

Susan Thomas says that based on Generation X research (people born between 1965 and 1980) conducted by Betsy Stevenson, an assistant professor at the Wharton School of Business, nearly 60% lived with their future spouses before marrying. Of that group, about 80% have made it past 10 years of marriage which is a very positive statistic.

Of those marriages that did not work out, the couple’s approaches to a divorce differ greatly. Among them, divorce mediation and collaborative divorce are on the rise, as parents want to spare their children the horrors of the types of divorces that they remember in movies like Kramer vs. Kramer or that they recall from their childhood. These couples read the studies; they understand the effect of divorce on children:

• Children of divorce are worse in math and social skills.
• They suffer from lower self-esteem than those from non-divorced households.
• Girls struggle with low self-esteem if their father abandoned them or if there is little exposure to the father in real life.

They prepare for the divorce the same way as they prepare for anything else in their lives. Their diligence enables them to approach the divorce process as a problem to be solved rather than an injury to be healed or inflicted on the other side. They are able to focus on the children’s well being and on common-sense solutions to financial problems rather than just dealing with the whole issue emotionally.

Susan Thomas talks about her particular situation and how she and her husband actually ended up strengthening their core friendship as they went through the divorce and discussed things together. They focused on the children and although as a couple, it didn’t work out, they continued being good friends for years to come. So she poses the question: “Do those marriages that suffer from a lack of heat while intact generally produce better divorced parents?”

The clients that cross the threshold of my office seem to confirm Thomas’ viewpoint. Generation X couples are more likely to mediate or be involved in a collaborative divorce process than younger couples or those, who, having lived together for 25 years are now going through a very hostile divorce. With younger couples the sense of betrayal often overwhelms and actually impedes the ability to make decisions during a divorce. Among older families, where children are emancipated, there is often long term resentment mixed in with concerns about financial stability later in life. How will the divorce landscape change in the future? I believe, that much of it will depend on what cultural direction our society would choose to undertake in the next few years.

Is It Fair? - - A Temporary Shared Custody Deal Between the Families of the Murdered Mother and the Accused Father

      “Peace is not an absence of war, it is a virtue, a state of mind, a disposition for benevolence,confidence, justice.” - Baruch Spinoza


In the New York Times article dated October 24, 2011, reporter Liz Robbins describes an incredible event that has taken place in Brooklyn Family Court and involved two very distraught families.  In August, Nazish Noorani, a married mother of two small boys was shot and killed.   It had later turned out that the murder was allegedly arranged by her husband, Kashif Parvaiz.  Prior to this tragedy, the family resided in Brooklyn with the paternal grandparents who acted as primary caretakers.

According to the NY Daily News article dated October 4, 2011, the lawyer for the mother’s family stated that the children were afraid of their paternal grandparents. The maternal grandparents, who live in Brooklyn as well, have only seen the children once since their daughter was murdered on August 16. The Brooklyn judge was to make a decision on custody in three weeks following a hearing held on October 4.

So, what happens now? Both families, with the help of the attorney for the children have worked out a temporary plan to share parenting time.  Is this justice? Is it in the best interest of these children? Will the mother’s family bury its grief and anger and work constructively toward these children’s best interest with the family that raised their daughter’s alleged murderer? Should they? And how will these children fair under the circumstances?

Only time will tell.

Roytberg Legal Alert

Mediator successfully quashes a subpoena in Suffolk County -
Rosenthal v. Rosenthal, NY Supreme Court, Suffolk County, Justice Garguilo (August 5, 2011)

When the parties started their mediation, they signed an agreement with the mediator with the following clause:

• To preserve the integrity of the mediation process it is agreed that neither Mediator, nor Mediator's records or notes shall be subject to subpoena by either Participant or anyone acting on either Participant's behalf in the event that this matter proceeds to litigation. Each Participant makes this covenant with the other as a condition of your agreement with each other to attempt mediation. Each of you also makes this covenant to Mediator to induce Mediator to serve as the facilitator of your negotiations. Participants agree to be responsible for any costs (including attorney fees) which Mediator might incur in order to prevent noncompliance with this paragraph.

In this case, both parties during a subsequent litigation joined in their desire to call the mediator as a witness to testify, but the mediator was against it. The court cited the New York State Manual for Administrative Law Judges and Hearing Officers and Judge Judith S. Kay's ADR Task Force report, which stated that “The mediator shall not be called as a witness at trial.” Justice Garguilo agreed with the mediator that as a matter of public policy confidentiality was important. However, he noted that in this case both parties wanted the mediator called. The court’s decision to quash the subpoena finally rested on the fact that the parties contracted with the mediator by signing an agreement with the clause noted above. The Court chose not to disturb their contract.

THE TAKEAWAY: - For Mediators : include this language in your retainer agreements. For Parties: make sure you understand the consequences of contracting with the mediator to keep him/her out of court.

The Making of a Parenting Plan

“When you teach your son, you teach your son’s son…” – The Talmud

Children are precious. They are incredibly unique and yet they carry within them characteristics and mannerisms of our favorite ancestors, - a familiar twinkle, a turn of the head, a dimple on the left cheek… Yet for a family in conflict these wonderful traits and mannerisms sometimes serve as an unpleasant reminder of the other spouse’s hurtful actions or annoying habits. It often takes a force of will for a parent not to snap, “You are just as stubborn as your father!” or “You are incompetent, just like your mother!” When parents are unable to control their outbursts their children suffer. They learn to hide their true feelings, to try and fit into the acceptable mold anticipated by each of the “enemy camps” they visit on alternate weekends.

It does not have to be that way. Most parents truly love their children and want them to become happy adults. This love can actually unite rather than divide the parents who are involved in a divorce or separation process, and often a lot depends on how the actual conversation about the children is begun.

In any family dispute that involves children whether it is a separation, a divorce or some other negotiation, parents need to devise a parenting plan which will address such questions as:

• Do we make decisions jointly?
• Does one parent have the final decision making authority in case the parents disagree?
• How will parenting time be divided?

Depending on the model of the process used there could be different ways in which these questions are addressed and the ultimate creation of the plan is accomplished.

Mediation

In mediation, the mediator will sit down with the two parties (and their lawyers if they choose to bring them) and review together the unique situation that exists within the family. The mediator will then help the parties come up with an appropriate parenting plan by facilitating a discussion and empowering them to agree on the best way to make decisions on behalf of the children.

In rare cases where there are specific disagreements on certain issues or professional input is needed, the mediator might suggest that the parties seek advice of a psychologist, child specialist, or another professional to clarify those issues.

Collaborative Process

In a Collaborative process that uses a collaborative professional team model the parents will have two lawyers, each representing one of the spouses and a child specialist who is usually a mental health professional. The child specialist may meet with the lawyers and the parties or may just meet with the parties. Based on his or her experience in the mental health field, he or she will help them work out a parenting plan which is then summarized and given to the lawyers to draft.

Traditional Court Process

In the traditional court model, when the case for divorce appears before a judge each side is usually represented by an attorney. If they cannot agree on decision making or parenting time, they are considered to have a custody dispute.

In a custody dispute, the court will appoint what was previously known as a Law Guardian but is now called an Attorney for the Child. This is a separate lawyer who is trained specifically to represent children of different ages and whose role is to advocate for the interests of the child in the divorce process. Depending on the age of the child, the Attorney may echo the child’s requests and desires or substitute his or her own judgment. The Attorney for the Child will interview the parents and possibly other people such as caretakers, pediatricians or teachers. He or she will then come up with a recommendation to help the parents decide what is best in terms of the parenting time and decision making for the child. The Attorney for the Child also makes recommendations to the court.

If a dispute still cannot be resolved, the parties will often reach out to a forensic psychiatrist who will perform a more thorough forensic evaluation. He or she will interview both the parents and the children and then write a report to be later used at trial to recommend what kind of parenting arrangement is in the child’s best interest.

One thing that most judges and child specialists would undeniably agree on is that in most cases what is ultimately in every child’s best interest is for the parenting agreement to be devised by the people who know him or her best – i.e. the child’s own parents. Children should be spared and kept out of the court process. They must be sheltered from being dragged through a hostile divorce between two people whom they love the most. Ideally, all parenting issues should be resolved through Mediation or Collaborative Negotiation, so that the children can hold on to their childhood and, in the words of George Eliot still feel that “the acorns and the swallow’s eggs are a wonder”…

The Consequences of Equality

“Any intelligent woman who reads the marriage contract, and then goes into it, deserves all the consequences.” ~Isadora Duncan

Recently the New York State legislature finally passed changes which now permit registration of marriages between persons of the same gender. Many rightly celebrate the triumph of equality under the law, yet for some, the prospect of “legalizing their relationship” may evoke concerns about the potential transformation of something special into something “legal” that can be regulated and ultimately dissolved through a divorce process. In his 1908 work, entitled “Getting Married”, George Bernard Shaw wrote, “When two people are under the influence of the most violent, most insane, most delusive, and most transient of passions, they are required to swear that they will remain in that excited, abnormal and exhausting condition continuously until death do them part.” Of course, that was satire, but the Hand of the Law and Government is now firmly involved in the households which choose to register their same-sex marriage in New York, and this, ladies and gentlemen, brings with it all of the legal consequences of matrimonial law. Let us take a look at just two areas which will be affected by these changes.

Parenting Issues

Before: If a same sex couple wanted to adopt a child they needed to go through a very serious adoption process. Even if the child’s biological parent is one of the partners in a same sex relationship (two women and one of the women is the biological mother of the child; two men and one of the men is the biological father of the child), the second partner would have to go through a “Second Parent Adoption” process in the courts in order to become the legal parent of the child. This way, if the relationship between two same-sex partners deteriorated, each of them would have parental status, regardless of the existence of a biological connection. If no formal adoption took place, rights of the biological parent had clear priority.

After: The existing New York family and divorce law presumes that a child born within the marriage is the legal child of both parents. New York Courts strongly oppose attempts to delegitimize a child of the marriage, and although this presumption is rebuttable, the burden of proof is quite high.
Logically, when applied to same-sex marriages this law should obviate the need for a Second Parent Adoption, as each parent should have legal status as long as the child is born after the date of the marriage.

Equitable Distribution – Real Property

Before: if a same sex couple lived together for over 20 years and owned a piece of property, the legal owner would generally be the person(s), whose name appears on the deed. Thus, if two partners jointly owned their house, each would have rights to the property. If only one of their names was listed on the deed, only that person would be considered the owner. Even if they jointly own the property, since the parties were not considered “married” when it was purchased, dividing it, if they cannot agree is rather difficult and often requires a “partition” action unrelated to dissolution of their relationship.

After: All property acquired after the date of the marriage is presumed to be joint property, even if it is acquired in the name of one of the spouses only. The other spouse is usually entitled to his/her equitable share (in most cases 50/50) of the property. If the parties cannot agree on what to do with their property, these issues are resolved by the same matrimonial judge, as part of their divorce process. There is no need to commence a separate action in a separate court.

In short, the State now has the legal right to “meddle” in same-sex relationships, which choose to register their marriages. Will the legal institution of marriage, now that it is available to all, remain appealing to so many? I suppose, the good thing about it is that the questions and answers related to “To Wed or Not to Wed” will now be the same for couples of same and different gender, and this is what we call “equality”.