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February 2012 Archives

#100 Third Department Caselaw Round-Up for December 15, 2011, Part 2 of 2

February 29, 2012

84 Post 12-15-11, Part 2 Third Department December.pngWell, here we are at last: the 100th blog post. I have had a blast so far and it comes as something of a shock that I have actually written 100 posts so far. Hell, I'm just getting started! I've got ideas for at least another thousand (1,000) blog posts. And once work starts to calm down a bit, I hope to be able to get to the point where I'm posting as often as once every day.

One of the things I want to get to soon are showcases of the many beautiful places where I live, in the Greater Capital Region. Spring is almost upon us and that is the ideal time for hikes to waterfalls, when waterflow is most often at or near the annual maximum. And you might not know it but this particular area is remarkably blessed in an abundance of waterfalls. And you don't have to take my word for it; go and check out the local King of the Waterfalls, Russell Dunn. Just another reason why I would never want to live anywhere else in the world.

There are thirty-two (32) decisions for this week and, surprisingly, only three (3) of those decisions are family law (or related) cases.

Continue reading "#100 Third Department Caselaw Round-Up for December 15, 2011, Part 2 of 2" »

#99 Third Department Caselaw Round-Up For December 15, 2011, Part 1 of 2

February 29, 2012

76 Post 12-15-11, Part 1 Third Department December.pngI had hoped to wrap up all of the new caselaw from December by February, but I'm just not going to make it, with two (2) more weeks to go. Plus, launching into March, I've got to play catch-up with the four (4) Thursdays in January and the four (4) Thursdays in February. So ... there are going to be quite a few more of these caselaw round-ups before I even get to anything else (except for the music, of course).

Also, I note that we're heading towards an appeal affirmation rate of about two (2) out of three (3) cases. I'm actually pretty impressed by those odds. I thought it would be closer to nine (9) out of ten (10). It turns out that appealing an order - at least in the Third Department - even where it seems otherwise hopeless, might just be worth your while. The Third Department has turned out to be much more sympathetic to appellants than I originally gave it credit for.

There are thirty-two (32) decisions for this week and, surprisingly, only three (3) of those decisions are family law (or related) cases.

Continue reading "#99 Third Department Caselaw Round-Up For December 15, 2011, Part 1 of 2" »

#98 Reflections On Leap Year Day (Or, Leap Year Day Is The Calendrical Analog To Time As New Law Is The Jurisprudential Analog To Justice)

February 29, 2012

98 Post Depositphotos_4543812_XS.jpgOr ... the only constant is change.

The cynic in me merely wants to publish a blog post on that rarest of days: February 29th. However, the philosopher in me finds the cynic useful in his own right.

When you get right down to it, Leap Year Day is very strange - but, at the same time, very refreshing. It is modern humankind's admission to itself that it simply cannot devise a uniform structure to adequately break time down into uniform and discrete units. Time is both enigmatic and inscrutable and the best that we can hope to do is merely to be in awe of it and hope to approximate its greatness.

And, by extension, the same argument goes for new law as well. It is nothing more than an incremental attempt to approximate justice, usually failing as often as it succeeds.

Continue reading "#98 Reflections On Leap Year Day (Or, Leap Year Day Is The Calendrical Analog To Time As New Law Is The Jurisprudential Analog To Justice)" »

#97 Third Department Caselaw Round-Up for December 8, 2011, Part 12 of 12

February 28, 2012

82 Post 12-08-11, Part 12 Third Department December.pngAnd, at long last, we reach the end of this particular series, with an interesting relocation case. And, once more, we discover the importance and power of a single word. In this case, that word is "contiguous." Therefore, before one opts to relocate, one would do well to know the definition of this word, if it is found within your order.

Also, this case nicely highlights the various factors in the seminal relocation case in New York, Tropea v. Tropea. When you hear an attorney state that they have a "Tropea case", that means that at least one party is relocating and that that party has some serious 'splainin' to do to the court if they hope to be able to both relocate and retain custody of the subject child.

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Continue reading "#97 Third Department Caselaw Round-Up for December 8, 2011, Part 12 of 12" »

#96 Third Department Caselaw Round-Up for December 8, 2011, Part 11 of 12

February 28, 2012

81 Post 12-08-11, Part 11 Third Department December.pngThe first case illustrates perfectly what it is that DSS has to prove in order to terminate a person's parental rights to a child for permanent neglect. And, most often, DSS provides the biological parents with many opportunities to become reunified with their children before they file a petition to terminate parental rights.

The second case is a wonderful example of just how damned messy family court cases can get. It shows how many different issues can get entangled with one another and how they have to be carefully sorted out by the family court to make a best interests determination for the child or children. This case also illustrates how fact-specific these matters can be (and usually are). In fact, it's the diversity of the cases in family court which makes practicing law in family court so much fun - every day is different from the next. There are no two cases that are exactly the same.

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Continue reading "#96 Third Department Caselaw Round-Up for December 8, 2011, Part 11 of 12" »

#95 Third Department Caselaw Round-Up for December 8, 2011, Part 10 of 12

February 27, 2012

80 Post 12-08-11, Part 10 Third Department December.pngHere is an excellent example of what happens when one fails to timely file a notice of appeal. The Appellate Divisions of the state like to deal with appeals expeditiously. And if an appeal is going to be taken from a decision, then the parties to the proceeding need to be placed on notice of any possible appeal as soon as possible. Otherwise, it is presumed that an appeal will not be taken.

In the second case, there is an interesting interplay between prison visitation and relocation, which is something I have rarely seen. While, separately, these issues often come up, it is rare to have to deal with both issues in the same case, as here.

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Continue reading "#95 Third Department Caselaw Round-Up for December 8, 2011, Part 10 of 12" »

#94 Third Department Caselaw Round-Up for December 8, 2011, Part 9 of 12

February 27, 2012

79 Post 12-08-11, Part 9 Third Department December.pngIn this post, I set forth two cases which deal with issues that are encountered all the time in family court: multiple orders, and the possibility that each may need to be appealed; and the need for particularity of the pleadings in order to give adequate and proper notice to both the court and the your opponent as to the specific relief requested.

If you wish to preserve your right to appeal from an order, then you should file a notice of appeal with regard to each order you receive from a court. There are some exceptions to this rule, but it is an excellent rule of thumb.

Furthermore, if you want to have the court grant you a specific form of relief, then you simply must be very clear and precise, in your petition, as to what it is that you are complaining about, how it affects you, how it affects the child or children, and how you want the court to change the situation.

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Continue reading "#94 Third Department Caselaw Round-Up for December 8, 2011, Part 9 of 12" »

#93 Third Department Caselaw Round-Up For December 8, 2011, Part 8 of 12

February 27, 2012

75 Post 12-08-11, Part 8 Third Department December.pngThe first case in this pair is yet another example of a hard lesson learned. When you are involved in legal proceedings, it is always sage advice to retain or be assigned an attorney. When you choose to represent yourself ... well ... have fun with that.

The second case involves due process in the form of simple notice. I would go even further and state this: if you want the court to consider a certain set of facts and allegations, then you would do well to ensure that they are actually in a petition that is before the court. Otherwise, if you don't ask, you might not get.

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Continue reading "#93 Third Department Caselaw Round-Up For December 8, 2011, Part 8 of 12" »

#92 Third Department Caselaw Round-Up For December 8, 2011, Part 7 of 12

February 26, 2012

74 Post 12-08-11, Part 7 Third Department December.pngOne of my favorite ways to get that incredible sugar high, as a kid, was to stuff my mouth full of grape bubble gum, in those halcyon days before the advent of Hubba Bubba or Bubblicious, - like maybe a dozen gumballs of the stuff - and sit back and relax as all that sugar hit my system all at once. With enough chewing, all that pliable gum would be ready for bubbles the size of my head. Of course, by that point, I was quite literally bouncing off any wall in sight.

This became regular practice for me before each and every Little League baseball game I ever played. Sadly, it didn't really help with my batting and fielding skills all that much. Whereas I merely sucked before, with all that sugar floating around in my system, I now sucked at a more hyper level. And that's just sad.

Okay, once more, with feeling: there are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Continue reading "#92 Third Department Caselaw Round-Up For December 8, 2011, Part 7 of 12" »

#91 Third Department Caselaw Round-Up For December 8, 2011, Part 6 of 12

February 26, 2012

73 Post 12-08-11, Part 6 Third Department December.pngI was one of those kids who, if given a pack of gum or a box of candy, would knock the thing off, all at once, seeking - and getting - an amazing sugar high in the process. Oh, yeah. Delayed gratification just was not my thing as a kid. I wanted it and I wanted it yesterday. So, despite the fact that I have quite a few blog posts ready to go, and I could easily space them all out over the next several days or weeks, my gut feeling is screw it, just post 'em all. Why wait? What's the point? Why not just get them out there for the world (or a handful of people) to read? Why not experience the intensity of having them hit your system all at once!?

So, here ya go: several blog posts' worth of the internet's equivalent of a sugar high for the day/weekend.

You're welcome.

Hey! You know the drill: there are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

Continue reading "#91 Third Department Caselaw Round-Up For December 8, 2011, Part 6 of 12" »

#90 Third Department Caselaw Round-Up For December 8, 2011, Part 5 of 12

February 25, 2012

72 Post 12-08-11, Part 5 Third Department December.pngAnd as quickly as the snow came down this morning, here it is almost 1:00pm and it is largely gone. That, to me, is not snow. No, that's more like frozen dew. C'mon, winter! Where is the snow!!?? I want to be able to measure this stuff in feet, not fractions of an inch!

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

And, as luck would have it, we have two (2) more cases hailing from Clinton County. It seems the northeastern corner of our state has a great deal to say when it comes to making family law caselaw in the Third Department.

So, without further ado, let's dive right in ...

Continue reading "#90 Third Department Caselaw Round-Up For December 8, 2011, Part 5 of 12" »

#89 What's So Funny 'Bout Peace, Love, And Harmless Error?

February 25, 2012

89 Post Depositphotos_2328876_XS.jpgAfter that last post, something was gnawing at me and I couldn't figure out what it was. And then, while sitting at lunch, with my son, eating pizza and garlic knots, in one of my favorite hang-outs - Pizza Works of Ballston Spa, New York - and mindlessly watching Nascar on ESPN on the wall-to-wall flatscreens there, it dawned on me: a distant memory of an interesting conversation I'd had with a law professor many years ago. He was trying to provide me with a tongue-in-cheek analogy to aptly describe how I should view the concept of harmless error in a criminal context.

I wanted to entitle this post "Life Is A Carnival", with a hat-tip to that great song by The Band, but while life might be a carnival, American jurisprudence more closely resembles a circus. At least, according to a law professor, flippantly trying to make an excellent point. In any event, the hat-tip is instead to Elvis Costello.

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#88 Third Department Caselaw Round-Up For December 8, 2011, Part 4 of 12

February 25, 2012

71 Post 12-08-11, Part 4 Third Department December.pngIt's great to be back. Let's get started ...

There are forty-five (45) decisions for this week and twenty-three (23) of those decisions are family law (or related) cases.

So, here's the deal: caselaw round-ups are back! And to get (re)started, right off the bat, we've got two (2) extremely sick cases to analyze. And by sick, I mean vomit-inducing. You can judge for yourself (as always), but these two sick puppies really turned my stomach. Like I repeatedly state on this blog: just when I think I've seen or heard everything - I'm proved wrong. As much as I would like to think that nothing surprises me, sadly, there are always more, usually very sick, surprises just around the next corner.

Fair warning: these two (2) cases are quite explicit and disturbing. I was tempted not to include them here but because I am a First Amendment zealot, and loathe all forms of censorship, I leave it to you to decide for yourself. But I am certain that you are not going to like the images that these words will conjure in your head. You've been warned!

First up, a painful exercise in the amazing power of words ...

Continue reading "#88 Third Department Caselaw Round-Up For December 8, 2011, Part 4 of 12" »

#87 February

February 25, 2012

106 Post-1 Depositphotos_8271672_XS.jpgAs happy as I am to wake up to a cozy blanketing of snow, we all know that, in this last third of the season of winter, this is now the exception rather than the rule. Snow has been as rare this winter as brown grass otherwise should have been. But since we seem, in recent years, to have skipped spring altogether, perhaps we are now entering years when we skip directly from autumn to summer. And that ain't good.

Come on, now, this month (and winter) has been outright bizarre. This is by no means natural, folks! I understand that one can not extrapolate meteorological events - i.e., weather - into meteorological complexity over time - i.e., climate - but still, this is some weird stuff. I can't remember a February this warm in my life. Nor can my father, and he's 84. Granted, I have yet to really dig into the almanacs and figure out what the highs and lows were for the past several decades, but I'm pretty sure what I'd find if and when I do.

Global weirdness, like strange days, has found us.

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#86 Third Department Caselaw Round-Up For December 8, 2011, Part ? of @#$%^&*+!!!

February 23, 2012

86 Post 12-08-11, Part x Third Department December.pngEver write an entire blog post and get ready to publish it - just as the power goes out? After about five minutes of exploring your complete repertoire of obscenities, you are then left wondering, gee, did I happen to save any of that? And then, several hours later, your day now conveniently destroyed by being without power, power comes back on as suddenly as it was cut off and then you get the wonderful satisfaction of knowing - surprise! - nothing was saved. Hurray! And you are left with trying to remember what the hell it was that you wrote, as you are forced to compose it all over again from scratch. Wonderful. Thanks, National Grid! Five more minutes of obscenities, this time directed at myself.

And here we are. And, yes, I'm hitting the damned save button about every ten seconds now. That's really what life is all about when you get right down to it: hard lessons learned. I sure as hell won't forget to do that again.

So ... where was I?

Continue reading "#86 Third Department Caselaw Round-Up For December 8, 2011, Part ? of @#$%^&*+!!!" »

#85 What I Was Listening To ... 40 Years Ago: February 1972 Playlist, Part 2 of 2

February 12, 2012

85 Post-1 Depositphotos_2286999_XS.jpgJohn and I very quickly learned to live a double life: to our friends and families, we were little radiohounds, eating up whatever singles Casey Kasem was ready to throw at us on his "American Top 40"; to each other, and Joe, we were budding audiophiles, getting turned on to the greatest music in the world, listening to album after album for long afternoons. This is the reason why you will find so many singles mixed in with so many non-single album tracks.

And, as I recall, it all seemed to start with Don McLean's "American Pie", back in January 1972. Once Joe realized we really liked that song, he took us under his wing and made sure to feed us a diet rich in kick ass rock 'n' roll.

Of course, all of this is in addition to the world of music opened to me by "Soul Train". So, right off, there were three massive streams of music coming at us: popular Top 40, various African-American genres, and progressive/psychedelic album-oriented rock. Like I said: imagine how lucky we were! All that great music influencing such young minds. We would never be the same.

Continue reading "#85 What I Was Listening To ... 40 Years Ago: February 1972 Playlist, Part 2 of 2" »

#84 What I Was Listening To ... 40 Years Ago: February 1972 Playlist, Part 1 of 2

February 12, 2012

84 Post-1 Depositphotos_2286999_XS.jpgI'm in a music mood. So sue me. I'll get away from it soon enough. Trust me.

It is hard to convey how lucky I was to have a best friend, let's call him John (not his real name), whose older brother was not only an audiophile, but a high school student and, then, a college student, way back when we were in elementary school. And John's older brother, let's call him Joe (not his real name), was cool enough to not only let us hang out with him and listen to his music but to actively turn us on to some of the greatest music then in existence.

Joe was also a college disc jockey for a time, so we were able to get our hands on albums weeks before they were released to the rest of the world. Joe's room was a heavenly chaos of 8-tracks, 45s, albums, and assorted tapes. He had a wall - literally an entire wall - of albums in his room. Joe once had us inventory his albums and we discovered that he had over a thousand of them. I remember spending an entire day alphabetizing the whole collection and carefully writing down the name and artist for each album.

Continue reading "#84 What I Was Listening To ... 40 Years Ago: February 1972 Playlist, Part 1 of 2" »

#83 What I'm Listening To: February 2012 Playlist, Part 2 of 2

February 12, 2012

83 Post-1 Depositphotos_2286999_XS.jpgAlso, given what I posted very recently, I note with sadness the passing of Don Cornelius, at the age of 75. Of all the people in this world who turned me on to the great music that exists out there - and which is only waiting for you to open your ears and listen to it without prejudice - Don Cornelius ranked as either Number One or Number Two on that list. The other person? That would be my best friend's older brother, whose privacy I shall respect and not name here (and who I haven't seen in ages).

Apparently Don Cornelius committed suicide, which makes his death even more tragic. And if that's not enough, it seems that he probably acted as he did because he was both already suffering from what appeared to be the early onset of Alzheimer's and because his health was in a downward spiral. In one of his obits, it noted that he was a Marine and actually served in Korea. I never knew that.

For me, I'll always remember that haunting baritone of his intoning: "And you can bet your last money, it's all gonna be a stone gas, honey!" And if you know Don's real life story, you'll know that that is exactly what he did. Party on, Don. And thank you.

Continue reading "#83 What I'm Listening To: February 2012 Playlist, Part 2 of 2" »

#82 What I'm Listening To: February 2012 Playlist, Part 1 of 2

February 12, 2012

82 Post-1 Depositphotos_2286999_XS.jpgAnd now for something completely different: a new set of songs for a new month.

I had planned on immediately getting back to caselaw round-ups and just put up blog post after blog post after blog post of caselaw analysis - and I will, I promise. But just not quite yet. In fact, I've got a handful of posts almost ready to go (they just need a bit more polishing) to get started on tackling the remainder of the whole month of December. And then I'll launch right into the four weeks of January. And we've already got two Thursday's worth of cases in February to tackle as well. So, yes, there is a lot to get to, I know. But first ... some more music. I just can't work without music.

Really: I can't do much of anything without listening to music. It makes such a great garnish to anything that you do, why on earth would you want to do without it? Music features prominently in my First Memories (the Beatles, and many others of the British Invasion, of course), and I've been collecting it ever since I got my first allowance at around the age of 6 (1969 anyone?). I've made the leaps from singles to albums to compact discs to MP3s. And in the process, I've got a music collection that iTunes tells me would take over eighty (80) solid days to listen to in full. Almost a whole season's worth of music!

So, if music isn't playing, I'm wasting my investment. And here's what I'm listening to now, in the month of February 2012 ...

Continue reading "#82 What I'm Listening To: February 2012 Playlist, Part 1 of 2" »