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#596 Third Department Caselaw Round-Up for May 9, 2013

May 10, 2014

594 Post 05-09-12 Third Department May.pngAnother day, another sex offender. This time, the sex offender stumbles into trouble for failing to register as a sex offender at his new address.

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#595 Third Department Caselaw Round-Up for May 9, 2013

May 9, 2014

593 Post 05-09-12 Third Department May.pngHere's yet another in a long line of cases involving a parent who just can't get her act together in time to avoid the seemingly inevitable termination of her parental rights. You know the drill.

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#594 Third Department Caselaw Round-Up for May 9, 2013

May 8, 2014

592 Post 05-09-12 Third Department May.pngHere is a case of a pro se sex offender scoring a partial win on appeal. What I like about these sorts of decisions is that they tend to be short with a relatively clear fact pattern. Plus, the sheer number of these decisions makes me realize that there are many more sex offenders living among us than I ever imagined. Think about that.

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#593 Third Department Caselaw Round-Up for May 2, 2013

May 6, 2014

591 Post 05-02-12 Third Department May.pngThe best advice I can give my clients, in most cases, should also be the most obvious: you need to LOVE your children more than you HATE their mother/father. If you can do that, then you can avoid having the court micro-manage your life. If you can't, then you can lose custody and be placed under a burdensome order. Your choice.

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#592 Third Department Caselaw Round-Up for May 2, 2013

May 2, 2014

590 Post 05-02-12 Third Department May.pngThe use of summary judgment in family court cases can be amazingly effective, when used properly (which usually occurs in situations involving derivative neglect or abuse). Most often, it is used by DSS to cut the guts out of the respondent's case, thereby allowing the court to proceed directly to a dispositional hearing. Most respondents will see this as a denial of due process since they expect to have their day in court to explain their side of the story. However, in the case of derivative neglect, if the prior neglect is proximate in time to the derivative neglect, and the cause of the initial neglect is actually ongoing, then the likelihood of a motion for summary judgment, and its success, grows substantially. I know this to be true because I'm currently in the midst of a case that is similar to this one.

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#591 Third Department Caselaw Round-Up for May 2, 2013

May 1, 2014

589 Post 05-02-12 Third Department May.pngHere's a lovely one for you. And if you don't think footnotes are important, then I direct you to read the short sentence that is footnote #1. Each of those eleven words were carefully considered and the sentence paints a picture of visceral rage from one perspective (that of the defendant), and visceral contempt from another (that of the Third Department itself). Now, try to tell me that words aren't extremely powerful weapons. Just remember this: the Third Department emotes through its footnotes. Think of footnotes as pressure-release valves.

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#590 Third Department Caselaw Round-Up for April 25, 2013

April 30, 2014

588 Post 04-25-13 Third Department April.pngHere is a strange little case that concerns a very narrow issue of law that I'm guessing most divorce attorneys will never see. It also illustrates that we can bump into the wall between Church and State in places where we least expect to find it. This case also calls into question a very basic tenet that every attorney learns in the first year of law school: that while caselaw from other judicial departments in New York State is informative and persuasive, it is not controlling. Here, under "special" circumstances, the Third Department states that this is not necessarily so.

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#589 Third Department Caselaw Round-Up for April 25, 2013

April 29, 2014

587 Post 04-25-13 Third Department April.pngHere's yet another interesting decision, dealing with something that is relatively uncommon, in my experience. Ever wonder what happens when a child unable to care for himself or herself reaches the age of majority? That's where guardianship comes in. And while guardianship may be addressed in Family Court, where the subject person/child is under the age of 18, it must be addressed in Surrogate's Court once the subject person/adult is 18 or older. Nevertheless, a similar analysis is used in both instances.

Also, to get the full effect of this decision, you will need to read it very carefully.

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#588 Third Department Caselaw Round-Up for April 25, 2013

April 28, 2014

586 Post 04-25-13 Third Department April.pngHere comes another sex offender and a surprise: a reversal. Betcha didn't see that one comin', huh? Sometimes simple procedural errors can turn out to be huge due process problems.

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#587 Third Department Caselaw Round-Up for April 25, 2013

April 27, 2014

585 Post 04-25-13 Third Department April.pngThis turns out to be an important case though it addresses a very narrow issue that infrequently occurs in Family Court. This decision answers the following question: what obligation does DSS have to make diligent efforts to reunify a child with a father when that father had previously had his parental rights to his other children terminated?

However, I have two big problems with this decision: 1) it never specifically addresses what diligent efforts (if any) DSS actually made in this matter and 2) it never specifically states the underlying court's findings in support of the order granting the motion. Thus, I find the factual analysis of this decision to be a bit sloppy. Nevertheless, there is a novel argument raised in this appeal which makes this case an interesting one. Check out that second argument! That is some fine lawyering!

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#586 Third Department Caselaw Round-Up for April 25, 2013

April 26, 2014

584 Post 04-25-13 Third Department April.pngI used to practice criminal defense, almost all of it as 18-B counsel (free to the client), so I retain a great interest in decisions on criminal cases. This is probably the only reason why I continue to analyze criminal cases. Plus, very often, I find them to have even more interesting fact patterns than family law cases. And, in some of the more macabre and bizarre cases, a great deal of humor (usually at the defendant's expense). Mostly, I am always amazed at how stupid human beings can be. And selfish.

Nevertheless, I think the real reason I've abandoned my practice in criminal defense is because I became somewhat burned out. And the reason might surprise you. I would work my tail off for all of my criminal defense clients because I always looked at the case from the perspective of me being the defendant. If I were charged with these crimes, what would I do, how would I think, what result would I think would be fair? And, most importantly of all, if I were the defendant, and I saw how hard my attorney was working to protect me (from myself), I would be absolutely sure to thank him or her for all their hard work and dedication, whether I was paying them or not. And, remember, almost none of my clients were paying me, since I was 18-B counsel.

So, do you know how many times I've been thanked by an 18-B criminal defense client? I've had hundreds of such clients and I can count the thank yous on a single hand. All I wanted/needed was some simple gratitude. Nope. Sorry. As such, it was the ingratitude of the clients that destroyed my desire to continue as criminal defense counsel (even when not dealing with 18-B clients).

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#585 Russians Living In Glass Federations Shouldn't Throw Stones (Or Foment Civil Wars)

April 25, 2014

585 Post Depositphotos_2328778_XS.jpgYeah, yeah, I know this is a family law blog. However, in another lifetime, I was a linguistics major who was conversational in Russian, German, and French, and who thought he had a bright future in geopolitics in the U.S. Foreign Service. At some point, the choice of a career in the law won out, but one does not merely shed past dreams. Rather, they shift to become simple hobbies. And while my Russian and German are now all but non-existent, and my French is truly pathetic, I still try to keep abreast of geopolitics, which was effectively my major at Siena College (political science with many courses in history).

So, when I see Russians, being led by their latest iteration of a totalitarian leader, intentionally (and probably with much preparation and planning) fomenting a civil war in neighboring Ukraine, it gives me pause. And, frankly, I really have to wonder, just how mind-blowingly stupid can Russians be?

Also, if you're not just a wee bit scared about this unseemly saber-rattling, then you really should be. The last time Russia invaded a neighboring European country (Czechoslovakia), was in 1968, when the U.S. was otherwise engaged in its misadventures in Southeast Asia. Before that, it was Hungary, in 1956.

So, in other words, the Russians have just precipitated a new cold war. What fun!

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#584 Third Department Caselaw Round-Up for April 25, 2013

April 25, 2014

583 Post 04-25-13 Third Department April.pngIt never ceases to amaze me that as little as only 10 years ago, this website and blog simply could not have existed. In its place would have been a small ad in the Yellow Pages for the Capital District. Yet, 10 years later, I can let my fingers do the walking and reach out and touch anyone in the world with an internet connection for LESS than the cost of listing my business in the local Yellow Pages. Mind-blowing. It also, inevitably, makes me feel friggin' old, wondering what's around the bend.

My maternal grandmother, born in 1901, lived in an age bookended by the Wright Brothers' first flight at Kitty Hawk, in December 1903, and the seemingly-routine flights of the NASA space shuttles, beginning with their maiden voyage in April 1981. She died in 1990, at the ripe old age of 89. Before she left this world, she took the time to do a general accounting of her life. I remember one of the last things she said to me was this: "I've lived to see men actually walk on the moon. I've lived in interesting times; I wonder what's around the bend." At the age of 26, I could not fully relate to the true depth and breadth of that statement, nor understand how it was simultaneously both a blessing and a curse, full of multiple meanings. How bittersweet it is to realize this now, in full, a lifetime later, at the age of 50.

I wonder what's around the bend. And do I really want to find out?

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#583 Third Department Caselaw Round-Up for April 25, 2013

April 24, 2014

582 Post 04-25-13 Third Department April.pngHere's an interesting case with a fact pattern that I've never seen before. It also involves dueling attorneys. And, as usual, the footnote is quite telling.

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#582 Third Department Caselaw Round-Up for April 25, 2013

April 22, 2014

581 Post 04-25-13 Third Department April.pngUsually, I engage in a cursory reading of a decision, garnering the basic facts, making a snap decision, and then discovering if the Third Department agrees with me. Most of the time, we're in agreement. Sometimes we're not, such as in SORA appeals. But the result in this case was not what I expected at first. So, I read the decision more carefully.

The second time around, I realized that the problem I have with this case is not so much the result, which is just, under all the circumstances, but the process. Sure, people are under no mandate to retain or be assigned attorneys. But pro se representation - especially for purposes of a trial - is usually a very bad idea, as this case makes perfectly clear.

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