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664 Post 06-27-13 Third Department June.pngI don’t read every case that the Third Department hands down (usually every Thursday afternoon), but I do give each one a cursory glance. In fact, I have a 5-second rule: if, in the course of 5 seconds, I find nothing of interest in a decision, then I will move on to the next decision. However, every now and then I will find a decision that I normally would never have cared much about but am impelled to read because it is such a ripping good yarn! This is one of those decisions.
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663 Post 06-27-13 Third Department June.pngI love this case, another diamond in the rough. Like I keep saying, if you read enough of these decisions, then after a while, you can intuitively spot the potential problem with the case. This is also another case where it is extremely important to pay attention to details that might be easily overlooked by most people – including other attorneys and judges.

Also, I empathize with the judge in this case, from my home county of Saratoga. Her heart was most definitely in the right place, looking out for the best interests of the child.

Lastly, because the issue addressed in this decision is sooooooo important, expect to see this case cited repeatedly. You’d be surprised at how often this issue arises.
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662 Post 06-27-13 Third Department June.pngLook, I know the reasons why people hate attorneys. They mostly hate attorneys because they don’t like it when other people (i.e. not them!) “get off on a technicality”. Of course, when the tables are turned, you know damned well that they expect such “exceptional” treatment as well. And what is a “technicality” after all other than THE LAW ITSELF!? HEY! Here’s a newsflash: people do not “get off on technicalities”. No. People “get off” because 1) the prosecuting attorney/agency @#$%ed up and/or 2) the defending attorney very competently, aggressively, and zealously represented his or her client (something EVERY person prays that their attorney will do for them).

So, why do I bring this up? Is it because I hate lawyer-bashing? No (though I DO hate lawyer-bashing). It’s because human beings make mistakes every day. And the knowledge of this one simple fact is sometimes all that is necessary to become a stellar attorney.

Check the elements of the case that MUST be proven! NEVER assume ANYTHING! Because this appellate attorney pulled off what might be seen as an amazing feat – when it really isn’t that amazing. It was merely looking for – and finding – a HUGE mistake.
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660 Post 06-27-13 Third Department June.pngThis case raises bad parenting to a laughable art form. Seriously. It was hard not to read this decision without laughing – despite the fact that the case is not so much hilarious as it is pathetic. Also, please note that the courts generally hate it when the custodial parent in any way limits the rights of the non-custodial parent or otherwise hurts the non-custodial parent’s relationship with the child(ren). Worse, the courts specifically hate it when the custodial parent threatens the child(ren) should the child(ren) opt to testify in support of the non-custodial parent. If you have to engage in fearmongering and threats to be a parent, then you’ve pretty much lost your way (and should now become the non-custodial parent!).

Wanna be a good parent? Then do this: ALWAYS put your child’s interests before your own. Always. Period.
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658 Post 06-27-13 Third Department June.pngHere is an excellent little decision with regard to preferring orders subsequent to hearings rather than orders subsequent to stipulations, as well as to determining the threshold where joint legal custody is no longer a viable option and sole legal custody has to be put into place.
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657 Post 06-27-13 Third Department June.pngThis case just flat out pisses me off. But, I shall get to that later. First and foremost, this decision teaches ALL of us, once again: NEVER CONSENT TO A SEARCH BY POLICE! Say it with me: NEVER consent to a search of your home without a warrant; NEVER consent to the search of your person without a warrant; and NEVER consent to the search of your motor vehicle. EVER. If you do, you will almost always regret it. Make that cop EARN that donut!
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656 Post 06-27-13 Third Department June.pngFull disclosure: I represented the appellant years ago as a respondent in Family Court, pretty much regarding issues similar to those mentioned in this appeal. However, this decision stands for the proposition that failure to appear in court is not, in and of itself, a good reason to dismiss a petition in Family Court. Also, as I recall, this is something like the third or fourth time these two parties have been part of an appeal in the past eight or so years.
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