I recently came across an interesting article on NPR's website regarding whether or not Parental Alienation should be classified as a mental health disorder. The article can be seen in its entirety here. The debate is taking place at the American Psychiatry Association. On the one side are advocates of domestic violence victims (mostly women) who believe the entire notion of parental alienation is a fabricated pseudo-science created by abusive partners (mostly men) who are trying to deflect attention away from their own behavior which, ostensibly, is the more likely cause of the estrangement between the child and father. On the other side of the debate are numerous mental health professionals who hope to see parental alientation classified as a verifiable diagnosis so that the issue can be dealt with more forthrightly in Family Court.
As stated in a previous post, it is my firm belief that parental alienation is not only real, but devastating to families. I have seen firsthand the traumatic effect that this insidious problem inflicts on children. Specifically, I have seen children reject any and all benevolent advances by the estranged parent for reasons that border on the ludicrous. It is not necessary to revisit the issue here other than to say that there are forceful and persuasive forces on both sides of this debate. However, I think most would agree that any attempt at undermining the bond between a child and parent should not be tolerated. Whether or not we classify parental alienation as a specific disorder has obvious implications to the Family Court, but is ultimately secondary to the emotional damage caused to families by parents who engage in perpetual battles with one another.
Thursday, October 21, 2010
Tuesday, October 19, 2010
Shaken Baby Syndrome
These are among the most emotionally charged cases the Family Court confronts. Often, Shaken Baby Syndrome (S.B.S.) renders a child significantly impaired, depending on the severity of the traumatic event(s). It can even be lethal. For a more detailed discussion of the S.B.S. from a medical standpoint click here and/or here. The most confounding question posed by these cases is who the culprit is. The agencies charged with prosecuting child abuse/neglect cases will usually take the broad view and name as respondents just about everyone who had sole access to the child within the timeframe that they believe that the child was injured. Therefore, it is very common to see parents and extended family named as respondents in these cases. The sad truth, however, is that generally speaking the wide net that child protective services agencies cast usually ensnares innocent parties who find it next to impossible to defend against these cases.
The first priority in defending against these cases is to determine whether the diagnosis of S.B.S. is even appropriate. While many experts will look for the telltale signs of S.B.S. (bilateral retinal hemorrhaging, subdural hematomas, hydrocephalus, fractured ribs, brain injuries, etc.) these signs can sometimes be attributed to non-abusive causes such as meningitis (bacterial or viral), increased intracranial pressure or some other underlying medical condition. The important part is to look at the history provided by the parents or custodians, the constellation of symptoms that the child presented with when he or she was first seen by medical personnel, how quickly the child's symptoms resolved (if they did), and what was revealed by the various diagnostic and/or clinical tests performed on the child.
Obviously, the average person and the attorney who represents a client facing a charge of abuse are not qualified to make these determinations without the assistance of an expert. Thus, while it is usually a costly affair, the retention of an expert is absolutely vital to defend these cases. Without an expert, a respondent stands little to no chance of successfully defending an abuse charge.
The reason for this grim outlook is that all the prosecuting agency needs to do is two things. The first is prove the child was the victim of a shaking event. This would be done through an expert who has either treated the child or reviewed the medical records. The second thing is to prove that, essentially, a respondent was a person who was legally responsible for the child (which could encompass day care providers, and hence, extended family members) and that the respondent had an opportunity to shake the child. Once these two facts are proved, the burden of proof shifts to the respondent to either disprove the diagnosis or the fact that they had access to the child. Without an expert, a respondent is basically before the court empty handed and a finding of abuse is a virtual foregone conclusion.
The first priority in defending against these cases is to determine whether the diagnosis of S.B.S. is even appropriate. While many experts will look for the telltale signs of S.B.S. (bilateral retinal hemorrhaging, subdural hematomas, hydrocephalus, fractured ribs, brain injuries, etc.) these signs can sometimes be attributed to non-abusive causes such as meningitis (bacterial or viral), increased intracranial pressure or some other underlying medical condition. The important part is to look at the history provided by the parents or custodians, the constellation of symptoms that the child presented with when he or she was first seen by medical personnel, how quickly the child's symptoms resolved (if they did), and what was revealed by the various diagnostic and/or clinical tests performed on the child.
Obviously, the average person and the attorney who represents a client facing a charge of abuse are not qualified to make these determinations without the assistance of an expert. Thus, while it is usually a costly affair, the retention of an expert is absolutely vital to defend these cases. Without an expert, a respondent stands little to no chance of successfully defending an abuse charge.
The reason for this grim outlook is that all the prosecuting agency needs to do is two things. The first is prove the child was the victim of a shaking event. This would be done through an expert who has either treated the child or reviewed the medical records. The second thing is to prove that, essentially, a respondent was a person who was legally responsible for the child (which could encompass day care providers, and hence, extended family members) and that the respondent had an opportunity to shake the child. Once these two facts are proved, the burden of proof shifts to the respondent to either disprove the diagnosis or the fact that they had access to the child. Without an expert, a respondent is basically before the court empty handed and a finding of abuse is a virtual foregone conclusion.
Equitable Estoppel - Who's The Daddy?
Ask anyone who practices in Family Court on a regular basis and they will tell you that the overriding concern in just about any proceeding is the best interests of the child. The basis of this, of course, is that children are the most vulnerable members of the family, in need of the most support, both financial and otherwise, to realize their full potential. However, when it comes to paternity proceedings, there are times when protecting the child's "best interests" can fly in the face of both fairness and common sense.
The doctrine of equitable estoppel provides such an example. The doctrine of equitable estoppel is invoked, usually by mothers (but not always) when a father seeks to have a DNA test to confirm that they are in fact, the father. Often these challenges to paternity come when the parents have separated and now the mother is seeking support. The father often wants to make sure that the child for whom he is going to be financially obligated to until the child turns 21 years old, is, in fact, his. To be sure, there are many times when these challenges are totally frivolous and made simply to exact some form of petty revenge against the mother. However, there are plenty of times when the concerns are sincere.
This is an issue that even the highest court in New York, The Court of Appeals, continues to grapple with. In a case in which I represented the mother before the Court of Appeals, a man who was not the biological father was nonetheless held to be the legal father because he had held himself out as the child's father for a period of 7 years. The case was Shondel J. v. Mark D.. The decision in its entirety can be seen here. More recent cases dealing with this issue and a further discussion of this issue can be seen in the recent New York Children's Lawyer by clicking here.
The issue in Shondel J. was similar to many cases I hd handled before and since. A father comes into court and asks for a DNA test. Before the Family Court agrees to give him that test the court must first determine if the father should be estopped from challenging paternity. What made Shondel J. unique was that the court did not do that, gave the father and child the DNA test and it was determined that he was not the father of the 7 year old girl who was the subject of the proceeding. The mother and child were then assigned attorneys (which should have happened inthe very onset of the case) and they challenged the father's right to a DNA test. The mother ultimately prevailed.
The fundamental goal of the decision in the Court of Appeals in Shondel J. was too preserve the child's right to a father. Clearly, the child had a right to expect the love and support of Mark D. (who in actuality severed his relationship with his "daughter" when he found out she was not his). But what the dissenting judges in that case could not accept was the palpable unfairness of imposing a false relationship on the father, rewarding the mother for essentially committing a fraud upon the father and
The doctrine of equitable estoppel provides such an example. The doctrine of equitable estoppel is invoked, usually by mothers (but not always) when a father seeks to have a DNA test to confirm that they are in fact, the father. Often these challenges to paternity come when the parents have separated and now the mother is seeking support. The father often wants to make sure that the child for whom he is going to be financially obligated to until the child turns 21 years old, is, in fact, his. To be sure, there are many times when these challenges are totally frivolous and made simply to exact some form of petty revenge against the mother. However, there are plenty of times when the concerns are sincere.
This is an issue that even the highest court in New York, The Court of Appeals, continues to grapple with. In a case in which I represented the mother before the Court of Appeals, a man who was not the biological father was nonetheless held to be the legal father because he had held himself out as the child's father for a period of 7 years. The case was Shondel J. v. Mark D.. The decision in its entirety can be seen here. More recent cases dealing with this issue and a further discussion of this issue can be seen in the recent New York Children's Lawyer by clicking here.
The issue in Shondel J. was similar to many cases I hd handled before and since. A father comes into court and asks for a DNA test. Before the Family Court agrees to give him that test the court must first determine if the father should be estopped from challenging paternity. What made Shondel J. unique was that the court did not do that, gave the father and child the DNA test and it was determined that he was not the father of the 7 year old girl who was the subject of the proceeding. The mother and child were then assigned attorneys (which should have happened inthe very onset of the case) and they challenged the father's right to a DNA test. The mother ultimately prevailed.
The fundamental goal of the decision in the Court of Appeals in Shondel J. was too preserve the child's right to a father. Clearly, the child had a right to expect the love and support of Mark D. (who in actuality severed his relationship with his "daughter" when he found out she was not his). But what the dissenting judges in that case could not accept was the palpable unfairness of imposing a false relationship on the father, rewarding the mother for essentially committing a fraud upon the father and
Monday, October 18, 2010
Who's The Daddy?: The Doctrine of Equitable Estoppel
Whether or not a man is determined to be the legal father of a child has enormous implications which range from the emotional to the financial. A recent decision by the New York Court of Appeals (Matter of Juanita A. v. Kenneth Mark N.) highlights some of the problems with this still evolving area of the law. For a full discussion of the facts of the case click here. As the attorney who was assigned to represent the mother the last time the Court of Appeals took up this case, I have had considerable experience confronting this highly complicated issue. The decision in its entirety can be seen here.
In a nutshell, the problem is a doctrine called "equitable estoppel". This doctrine is used to prevent potential fathers from securing a DNA test to confirm or rebut any presumption of paternity if they have held themselves out as the father of the child and the child recognizes the man to be his or her father. As is often the case, the mother seeks child support but must first file a paternity proceeding to secure an order of filiation (an order legally determining who the father is). This is the point where the potential father will request a DNA test if there is a shred of doubt as to his biological paternity. However, timing, in this instance, is absolutely critical.
If the child is already of an advanced age (say 3 years and older), and the child recognizes the man to be the father, the chances of getting a DNA are slim. The child will be assigned an attorney and in many cases that attorney, along with the mother and her counsel will argue that the father should not be permitted to scientifically challenge paternity because to do so would cause irreparable harm to the child. If the Family Court agrees, the father can and will be equitably estopped from requesting a DNA test and legally determined to be the father, and, ostensibly, left in the dark for all time as to whether he is or is not the father of the child.
The rule has its benefits but with significant drawbacks. The obvious benefits are that a person who willingly holds himself out to be the father and enjoys all the benefits of fatherhood for years and has been a source of support for the child, should not be allowed to withdraw that support in the eleventh hour simply because the relationship with the mother has soured. However, where the mother had good reason to believe that the man acting as the father was not the father, are we not rewarding the mother for an act of fraud? Is this fair to the father? The child? These are vexing questions which the Court of Appeals is still wrestling with as their split decision in the case I argued evidenced. The dissenters in that case simply could not get past the palpable unfairness of rewarding the fraud. Nonetheless, as the United States Supreme Court declined to hear an appeal on this case, the majority's view remains the law in the State of New York.
From a practical standpoint, my advice to any man whose paternity is in doubt is to find out as soon as humanly possible. By that I emphatically do not mean once litigation has already started. I mean as soon as possible after the child is born.
In a nutshell, the problem is a doctrine called "equitable estoppel". This doctrine is used to prevent potential fathers from securing a DNA test to confirm or rebut any presumption of paternity if they have held themselves out as the father of the child and the child recognizes the man to be his or her father. As is often the case, the mother seeks child support but must first file a paternity proceeding to secure an order of filiation (an order legally determining who the father is). This is the point where the potential father will request a DNA test if there is a shred of doubt as to his biological paternity. However, timing, in this instance, is absolutely critical.
If the child is already of an advanced age (say 3 years and older), and the child recognizes the man to be the father, the chances of getting a DNA are slim. The child will be assigned an attorney and in many cases that attorney, along with the mother and her counsel will argue that the father should not be permitted to scientifically challenge paternity because to do so would cause irreparable harm to the child. If the Family Court agrees, the father can and will be equitably estopped from requesting a DNA test and legally determined to be the father, and, ostensibly, left in the dark for all time as to whether he is or is not the father of the child.
The rule has its benefits but with significant drawbacks. The obvious benefits are that a person who willingly holds himself out to be the father and enjoys all the benefits of fatherhood for years and has been a source of support for the child, should not be allowed to withdraw that support in the eleventh hour simply because the relationship with the mother has soured. However, where the mother had good reason to believe that the man acting as the father was not the father, are we not rewarding the mother for an act of fraud? Is this fair to the father? The child? These are vexing questions which the Court of Appeals is still wrestling with as their split decision in the case I argued evidenced. The dissenters in that case simply could not get past the palpable unfairness of rewarding the fraud. Nonetheless, as the United States Supreme Court declined to hear an appeal on this case, the majority's view remains the law in the State of New York.
From a practical standpoint, my advice to any man whose paternity is in doubt is to find out as soon as humanly possible. By that I emphatically do not mean once litigation has already started. I mean as soon as possible after the child is born.
Saturday, October 16, 2010
Parental Alienation - A Thorny Judical Thicket
One of the most vexing problems facing the Family Court and the practitioners who work there is the claim of parental alienation. A thorough, though not exhaustive, treatment of its legal history is set forth in a recent edition of New York Children's Lawyer (formerly called the Law Guardian Reporter). The article can be seen in its entirety here. A detailed explanation as to what parental alienation is can be seen here. Indeed, the problem is so prevalent that entire websites have been created to discuss its myriad implications. One example can be seen here.
In short, parental alienation manifests itself when a child, without proper cause (such as long term abuse or neglect) arbitrarily decides to cut off his or her relationshiip with a parent. As one would expect, the child's decision is usually anything but arbitrary, but the byproduct of a course of conduct by another parent who is actively trying to undermine the relationship between the child and the other parent. The motives for this destructive conduct vary but the results often do not.
I have interviewed hundreds of children over the years who have been victimized in varying degrees by this insidious affliction. Their lives and emotional well being have been utterly traumatized and yet, in many cases, they feel paralyzed. The have been so completely conditioned to reject one parent that they are literally afraid (in some cases terrified) to even engage the alienated parent. The alienated parent, of course, is understandibly frustrated, depressed and angry.
To be sure, these families are in a state of acute crisis. And from what I have seen in the past 15 years, the Family Court is ill-prepared to deal with this issue. Some judges openly reject the whole idea of parental alienation. Others throw up their hands and wonder aloud what they can do when a child refuses to visit with another parent for no apparent reason. Indeed, even the psychologists and other mental health professionals charged with evaluating the families (and, ostensibly, crafting viable lifestyle plans for them) often do not offer anything beyond the bland recommendation of family therapy. However, these family therapy sessions often offer little beyond perfunctory, short -lived and ultimately ineffective assistance.
The crux of the problem from the Family Court's perspective is how to deal with a child who will not comply with a court order regarding visitation. We cannot arrest children who are technically in violation of a court order any more than it makes sense to attempt to drag a child, kicking and screaming, to a visit with a parent. And so, faced with this this conundrum, Family Court judges will often shrug their shoulders and move on to the next case, thereby awarding the offending parent, and, more importantly, ignoring their commitment to protect the best interests of the child.
In the New York Children's Report cited above, some interesting proposals from various sources are being discussed and worthy of mention. The first is to have a judge specifically assigned to these types of cases. This would be of invaluable assistance since the patterns of behavior in these cases are so similar and the ability to identify them and snuff them out as early as possible is the key to maintaining the integrity of the parent-child relationship. A second proposal, involving situations where the parental alienation is already quite acute, involves sending the parent and child to intensive "camps" where mental health professionals with experience dealing with these issues can address the problem in a more thoughtful, creative and effective fashion.
Clearly, it is time to move beyond the existing parameters of the Family Court if we, as a society, are to take seriously the overwhelming and tragic impact that parental alienation has on families. The proposals discussed above are a good start and I'm sure to revisit this issue in the future as more innovative solutions are conceived.
In short, parental alienation manifests itself when a child, without proper cause (such as long term abuse or neglect) arbitrarily decides to cut off his or her relationshiip with a parent. As one would expect, the child's decision is usually anything but arbitrary, but the byproduct of a course of conduct by another parent who is actively trying to undermine the relationship between the child and the other parent. The motives for this destructive conduct vary but the results often do not.
I have interviewed hundreds of children over the years who have been victimized in varying degrees by this insidious affliction. Their lives and emotional well being have been utterly traumatized and yet, in many cases, they feel paralyzed. The have been so completely conditioned to reject one parent that they are literally afraid (in some cases terrified) to even engage the alienated parent. The alienated parent, of course, is understandibly frustrated, depressed and angry.
To be sure, these families are in a state of acute crisis. And from what I have seen in the past 15 years, the Family Court is ill-prepared to deal with this issue. Some judges openly reject the whole idea of parental alienation. Others throw up their hands and wonder aloud what they can do when a child refuses to visit with another parent for no apparent reason. Indeed, even the psychologists and other mental health professionals charged with evaluating the families (and, ostensibly, crafting viable lifestyle plans for them) often do not offer anything beyond the bland recommendation of family therapy. However, these family therapy sessions often offer little beyond perfunctory, short -lived and ultimately ineffective assistance.
The crux of the problem from the Family Court's perspective is how to deal with a child who will not comply with a court order regarding visitation. We cannot arrest children who are technically in violation of a court order any more than it makes sense to attempt to drag a child, kicking and screaming, to a visit with a parent. And so, faced with this this conundrum, Family Court judges will often shrug their shoulders and move on to the next case, thereby awarding the offending parent, and, more importantly, ignoring their commitment to protect the best interests of the child.
In the New York Children's Report cited above, some interesting proposals from various sources are being discussed and worthy of mention. The first is to have a judge specifically assigned to these types of cases. This would be of invaluable assistance since the patterns of behavior in these cases are so similar and the ability to identify them and snuff them out as early as possible is the key to maintaining the integrity of the parent-child relationship. A second proposal, involving situations where the parental alienation is already quite acute, involves sending the parent and child to intensive "camps" where mental health professionals with experience dealing with these issues can address the problem in a more thoughtful, creative and effective fashion.
Clearly, it is time to move beyond the existing parameters of the Family Court if we, as a society, are to take seriously the overwhelming and tragic impact that parental alienation has on families. The proposals discussed above are a good start and I'm sure to revisit this issue in the future as more innovative solutions are conceived.
Friday, October 15, 2010
Expanded Access to Family Court - "Intimate Relationships"
For many people seeking orders of protection, the Family Court may now be a possible resource. Previously, the Family Court was limited to hearing cases between spouses, people with a child in common or some form of blood relationship. However, the Famil Court can now hear cases involving issues between two people who are or have been in an "intimate relationship". You can review the specific language of the statute and about some of its implications here.
The question remains. . .what is an "intimate" relationship? Unfortunately, so far, not even the judges and referees have demonstrated a particularly strong understanding of the breadth of this expansion. As a result, in several counties, litigants must be prepared to prove to a designated J.H.O. (judicial hearing officer - generally former judges who now work part time) whether or not they have had an intimate relationship with the person against whom they are now seeking an order of protection.
As there is not much in the way of precedent on this issue, I can only offer my own experience since the law was enacted to give potential parties some guidance. Clearly, couples who lived together, both heterosexual and gay, and never had a child together would qualify, particularly if they had a sexual relationship. And while it is not specifically required that the parties live together or had a sexual relationship, it is unclear whether mere roommates qualify however, as one J.H.O. has ruled that they do have standing to seek an order of protection while another has ruled they have not. The distinguishing factor in these two cases was the length of time they had lived together, the shared nature of their finances, etc. However, absent the usual circumstances of people living together in a sexual relationship, the waters for would-be litigants get pretty murky. This is no doubt complicated by the fact that the last thing the Family Court needs is an onslaught of new litigants further congesting the court's already ridiculously bloated dockets.
For example, should a girlfriend who is being relentlessly harassed by an ex-wife of her new boyfriend have the right to go to Family Court? Should a mother who is assaulted by her former son-in-law have the right? Each case is different and needs to be examined independently. As a general rule, I would suggest that the more substantial and long lasting the connections between the parties, the more likely the Family Court is going permit the alleged victim to seek an order of protection.
The question remains. . .what is an "intimate" relationship? Unfortunately, so far, not even the judges and referees have demonstrated a particularly strong understanding of the breadth of this expansion. As a result, in several counties, litigants must be prepared to prove to a designated J.H.O. (judicial hearing officer - generally former judges who now work part time) whether or not they have had an intimate relationship with the person against whom they are now seeking an order of protection.
As there is not much in the way of precedent on this issue, I can only offer my own experience since the law was enacted to give potential parties some guidance. Clearly, couples who lived together, both heterosexual and gay, and never had a child together would qualify, particularly if they had a sexual relationship. And while it is not specifically required that the parties live together or had a sexual relationship, it is unclear whether mere roommates qualify however, as one J.H.O. has ruled that they do have standing to seek an order of protection while another has ruled they have not. The distinguishing factor in these two cases was the length of time they had lived together, the shared nature of their finances, etc. However, absent the usual circumstances of people living together in a sexual relationship, the waters for would-be litigants get pretty murky. This is no doubt complicated by the fact that the last thing the Family Court needs is an onslaught of new litigants further congesting the court's already ridiculously bloated dockets.
For example, should a girlfriend who is being relentlessly harassed by an ex-wife of her new boyfriend have the right to go to Family Court? Should a mother who is assaulted by her former son-in-law have the right? Each case is different and needs to be examined independently. As a general rule, I would suggest that the more substantial and long lasting the connections between the parties, the more likely the Family Court is going permit the alleged victim to seek an order of protection.
Thursday, October 14, 2010
New York's No Fault Divorce Law
Effective this week, New Yorkers seeking a divorce, no longer have to deal with the cumbersome and awkward causes of action for divorce such as abandonment, constructive abandonment, adultery or cruel and inhuman treatment. The statement from Governor Patterson can be viewed here. These antiquated causes of action imposed costly litigation on a spouse whose partner refused to accede to an amicable divorce. It also placed litigants in the awkward position of having to lie under oath, when the divorce was amicable, that one party had abandoned the other, even when that was not the case. It is clearly refreshing to see the legislature taken a more civilized view of divorce so that the painful process of separation need not be further complicated.
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