Valentine's Day and the Sages of State Street

NNew York Judge George Donnellan: "Miss West, are you trying to show contempt for this court?"
Mae West: "On the contrary, your honor, I was doin' my best to conceal it." During her indecency trial, 1927
“A man in love in incomplete until he has married. Then he’s finished.” Zsa Zsa Gabor
“Women who seek to be equal with men lack ambition.” Marilyn Monroe

You cannot make this stuff up. My vote for Mother of the Year goes to Melody M., mother of three small kiddies who posted on Facebook that her ten year old son was an “asshole.” When asked why, she replied that she did so because he is an asshole and it was important for her Facebook friends to know this. In a Valentine’s Day present for Ms. M., the Third Department disagreed and Justice Rose poetically wrote, “Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct towards her oldest child.” Now, I am not a big believer in expanding the power of Family Court to all manner of parental conduct, but it is hard to argue with the issuance of an Order of Protection prohibiting her from posting anything about the children on any social network site. This case also upheld the discretion of the court not to hold a Lincoln hearing and the ability to issue an Order of Protection in a violation petition even if not requested.
So here’s the Matrimonial News of the Weird. A prosecutor in North Dakota has filed charges of adultery against a guy who had relations with someone not his wife. When asked why he filed charges, the prosecutor said, “I guess she’s upset with him.” So? In Utah, some legislator introduced a bill to make adulterers pay more in alimony, and another to allow 14 year old children to testify in custody cases. This makes me glad I don’t practice in the Beehive State. Finally, did you see some Egyptian Salufi preacher named Ahmad Mahmoud Abdullah (but his friends call him Abu Islam) said that those celebrating Valentine’s Day were committing a sin for which they would burn in hell. In spite of Abu’s warning, the Sages of Sate Street celebrated Valentine’s Day with a slew of custody cases. In two cases they denied relocation, reaffirming the Third Department’s high standard of not allowing interruption of the child’s relationship with the other parent. In Rose fka Bailey fka Buck v. Buck the mother had remarried and had a new child. She sought to relocate to Kentucky where her new husband lived. The new hubby had superior financial circumstances and the mother had offered the father substantial time on all holidays and in the summer. Not enough, and the Mom was allowed to keep primary custody only if she stayed within 50 miles of Dad’s home. The Appellate Division imposed the 50 mile rule. In another case, the mother sought to relocate to California. The Dad’s visits were supervised twice weekly as there were allegations of sexually abusing a child from another relationship. Not enough, saith the Third Department citing, among other things, “no meaningful economic enhancement.” That must have stuck in the craw of Ms. Rose fka Bailey fka Buck. Interestingly, with only nine judges in the Third Department, the four who decided Rose v. Buck were completely different from the four who decided the California matter. Go figure. Compare this with the Fourth Department which held in Saperston v. Holdaway that a mother could relocate to Brooklyn from Western New York as it was in the child’s best interest and since there was no prior custody order, the Tropea relocation standards did not apply. What is interesting with the Saperston case is that the Fourth Department reversed the trial court’s award of custody to the father and allowed the relocation. It is also curious that Ms. Holdaway’s Facebook page now prominently displays the child. Although there was a two judge dissent, the Court of Appeals declined to step in as the matter was remitted for further proceedings and therefore the Fourth Department had not finally decided the matter. Nice punt. Finally, in a decision that would make Cheech and Chong proud, the Third Department granted custody of a child to a mother who regularly smoked marijuana with her boyfriend. All in all a fine Valentine’s Day in the neighborhood.
Speaking of News of the Weird, the folks at the Unified Court System have asked if we wish to weigh in on the dissemination of forensic custodial reports to clients in custody litigation. I’m glad they asked. I have never been able to decide what information I was supposed to withhold from my client when the report is available only to me. My friend the late Peter Porco used to dictate the reports to a recorder when reviewing them in some judge’s chambers, a practice I copied. There are three proposals, one from something known as FCARC, which I always thought was the People’s Army of Columbia. I had no idea they cared. Here is the problem. Of course a client needs to know what is in a report so he or she can meaningfully decide whether to proceed to trial and to aid the lawyer in the defense or proffering of the report. Unfortunately there is the danger of having parts of the reports displayed by the Ms. M’s of the world in social media or otherwise. To address the problem, the Office of Court Administration came out with a form. How novel of them! It is an Attorney’s Affirmation to promise to allow the client to read it but not copy it. No copies can be made and it must be returned to the court if the attorney no longer represents the parent. The report cannot be quoted in any court papers which is of course problematic when doing proposed findings. There are three proposals with differing views, and I encourage you to weigh in. You can e-mail your suggestions to ForensicReports@nycourts.gov. As for me, I like the idea of having a client read but not copy or make notes on the report.
Finally, did you catch the State of the Judiciary Address of the Chief Judge? If you didn’t, don’t worry. You can catch the whole thing here as a webcast or pdf file: http://www.nycourts.gov/ctapps/soj.htm In fact, you can catch all of the addresses back to 2002 as webcasts at the same site. And why wouldn’t you? In any event, the Chief Judge announced that he was encouraging attorneys to participate in pro bono work by making us report the hours of such service and the monetary contributions to “legal service providers” when we file our biennial registration. I’m not sure how bean counting encourages pro bono work, but I suspect it will lead to some kind of recognition if you do a lot of it, or something. So, let’s keep track of all the time we spend for pro bono services so we can have another bean counter put this all together. As far as I am concerned, Bobbie the Bartender at Dorado’s is a legal (beverage) services provider so I’m keeping count of my contributions to him. Happy St. Patrick’s Day, y'all.

Matter of Melody M. v. Robert M., __ A.D.3rd __ (February 14, 2013)
__ A.D. 3rd ___(February 14, 2013)
Scott VV v. Joy VV, __ A.D.3rd __ (February 14, 2013.
93 A.D.3rd 1271 (Fourth Department, 2012).
87 N.Y.2nd 727 (1996)
__ N.Y.3rd __ (February 19, 2013).
Foolishly spelled marihuana in the Penal Law and by the Third Department.
Gordon v. Richards, __ A.D.3rd __ (February 14, 2013).
Actually it is the Family Court Advisory and Rules Committee
You can find it here:
www.nycourts.gov/forms/matrimonial/Affirmation%20Of%20Counsel.wpd