Whenever I am pulled over for speeding (which, actually, rarely happens anymore), my knee-jerk response to that stupidest of all cop questions "do you know how fast you were going?" is always the same: "yes". Of course, it begs the next question: "well, how fast were you going?" My response: "don't you know?" I love turning tables on people. Oh, the mind games you can play with police officers. Unless, of course, if you're an idiot.
PRIOR RESULTS DO NOT GUARANTEE A SIMILAR OUTCOME
Results tagged “Caselaw Round-Up” from Upstate New York Family Lawyer Blog
Here's another case involving a (thankfully prior) judge whose appearance in any case on appeal immediately causes me to see red flags. However, this time the potential problem was mitigated by the wisdom of the succeeding judge. But, not to worry: I'm sure we will discover some other wonderful examples of judicial cranial-rectal inversion syndrome in the many cases yet to come. Most judges remind me of Longfellow's "little girl": when they are good, they are very good indeed; when they are bad, they are horrid.
Full disclosure: I am acquainted with the wife in this particular case, since she is a matrimonial attorney in Montgomery County. While I knew some of the details of the messy divorce, I was surprised to discover that it went up on appeal. It would also appear that the local judges (wisely) recused themselves as the presiding judge in this case is from Schenectady County. Messy divorces make for messy appeals.
Actually, the thing I like the most about what I do for a living is the ability to hear some truly amazing stories - all for free. I guess, at heart, I have always been a writer, a collector of tales, because, out of everything else I do in life, listening to stories, and creating my own, is clearly what I love doing the most. Once again: witness the amazing power of words. Because, at the end of the day, and at the end of our lives, stories are all we have.
What I love the most about the law is, paradoxically enough, the enormous capacity it has for creativity, despite having a notorious reputation for its rigidity. Most people certainly would not think about this. In fact, most would probably vehemently disagree with me. Creativity? Are you NUTS!? And I would counter by saying this: where the hell do you think all the best caselaw, legal doctrines, and legal reasoning comes from? Law - statutes and cases - are created through millions of little epiphanies, gathered together over time. The law, yes, the law itself, is nothing but a massive conversation by and between many generations of humans culminating in a vast work of art, that is a testament to both our culture and our civilization. To a very great degree, "law" is a mark of our humanness, our humaneness. It separates us from all other animals. And this is the spark that set fire to my imagination, which culminated in a career in the law.
Every new twist and turn is but a new verse added to the endless song. And it is so exciting to be one of those first few individuals to hear those breathtaking new notes. Isn't it amazing how powerful words are? It never ceases to amaze me. Just 26 letters representing 40+ sounds (phonemes: 24+ consonants, 16+ vowels) and the variations are infinite. Infinite. So ... BE creative! All the best lawyers are.
Another week, another sex crime. This one is quite short.
Also, another pet peeve of mine: do NOT turn strong verbs into weak ones in the past tense. This really drives me nuts for some reason. I guess it goes way back to my days in high school and college, when I thought I had a future in linguistics. What are strong verbs? They are verbs that have their own forms in the past tense (in other words, you don't just tag on "-(i)ed" to them). Some examples? Well, the one that set me off here is the verb "to plead". The past tense of "plead" is NOT "pleaded" but "pled". I've seen this many times with the verb "to light" as well (a candle is "lit" NOT "lighted"). And, for whatever reason, "defendant pleaded guilty" in the Third Department whereas "the defendant pled guilty" everywhere else in the English-speaking world. Yeah: and don't even get me started on the loss of the definite article in sentences (unless you're British, in which case, carry on, perhaps while you're at hospital).
I read this case and thought to myself "Oh, what a difference a generation or two makes." When I was a kid (read: the 60s and 70s), it was quite common for people to drink faaaar too much alcohol and nonetheless pile the family into the car for the trip home. I'm not naming names or pointing fingers but I think it's very safe to say that this was rather the rule than the exception. Fast forward 40 or 50 years and the country - and the culture - has utterly changed (for the better, I hope). What were once merely eyerolls and headshakes are now clearly misdemeanors and felonies. So ... beware.
Another termination case with predictable results. The one good aspect of the case, from the children's family's perspective, is that the children were kept within the family, with an aunt ultimately adopting them. Most times, children in these sorts of situations come from families far too fractured to be able to have another family member adopt them.
So, how about a relocation case where the non-custodial parent is potentially a sex offender? Think you know the answer? Well, guess again. This case is why I love reviewing and analyzing these cases. Just when you think you've gotten a handle on things, a new factor (or more) is added to the mix and things get even more interesting. Even more than criminal cases, family law cases are extremely fact-dependent, and often quite fact-intensive. Tweak a single fact and the result can be greatly affected.
Here is a decision where the Third Department drops the veil of subtlety and lets the lower court, and all of the attorneys involved in the case, know very clearly (in the best British accent) that "we are not amused". In other words: this is not your standard termination case.
This is a cringeworthy case. Yes, you will read it and you will reach a point in the decision where you will experience an involuntarily intake of air and state: "OMFG!" It really is hard to believe that some people are parents - and I use that word in its most liberal interpretation. Also, this case illustrates one of the MANY reasons why I loathe Facebook. Also, I have a real problem with an aspect of this case.
Another very interesting case, this time concerning strict compliance with an important section of the Uniform Child Custody Jurisdiction and Enforcement Act - the UCCJEA. This case also underlines one very important rule: making a clear and comprehensive record of the court proceedings is paramount - for both attorneys and judges.
This is a relocation case. And, like all relocation cases, it is heavily fact-intensive. I have an interest in relocation cases because I've litigated several of them and I think I have a pretty good sense of what it takes to win them. After a while, you tend to get a sense of whether or not the case is a good one, a bad one, or too close to call. In fact, just this week, two relocation cases walked through my door, one good and one too close to call. One of these days I'm going to have to write a blog post as to what makes for a good to great relocation case. Also, an analysis of the seminal relocation case, Tropea v. Tropea, from 1996, is probably also in order. However, I've got a large backlog of cases to get to ...
Here's another case of a determination as to custody and the concomitant need to weigh the pros and cons of each parent in making such a determination. Remember: whoever has more pros than cons usually wins primary physical custody of the children.
I had to read this decision multiple times just to make sure that I was reading it correctly. Why? Because it doesn't make ANY sense. Here's an excellent example of the Third Department ignoring precedent and making BAD LAW. This doesn't happen often, but it happens often enough that it needs to be pointed out and ridiculed. Boneheaded decision.
This is a rarity: the winning of a reversal in a SORA appeal. This sort of thing occurs less than 1% of the time, so it's always worth noting when it happens. In this case, it seems that neither the defendant nor the court itself had complied with the substance of the applicable statute.
Here's another termination of parental rights cases. As you can well expect, these cases are almost always pathetic illustrations of how NOT to be a parent to a child. Very often, these cases show a parent that is simply too overwhelmed with problems (usually a wide variety of them) to be able to properly parent a child. The parent is usually given some help from DSS but, almost inevitably, the parent fails to live up to expectations and reverts to form, a default position of chronic dysfunction. And then the children are lost to the system.
Here's a case that illustrates that smoking a little ganga won't necessarily disqualify you as a candidate for primary physical custody of your child, especially if you've been the child's primary caretaker for most of the child's life. Of course, as you can well imagine, there's just a bit more to the story than one or both of the parties getting stoned - and caring for a child.
Of all the various crimes that I am aware of, and given the hundreds (perhaps thousands) of people I have represented, and given the fact that committing any crime is an act of stupidity, I think I can usually wrap my head around why the person did what they did - except in the case of crimes against children and (domesticated or vulnerable) animals. For a person to want to harm children or animals, there has to be a whole section of the human brain that left for a permanent vacation. And then there are the monsters who are so sexually depraved that they see children and/or animals in a whole new and deeply disturbed light. And like traffic slowing down to a crawl to gawk at the wreckage from a bad accident, these are the sorts of cases that get my attention.
This is one of those neat little cases you see from time to time if you're a caselaw junkie like me. This case solely concerns the issue of appellate counsel fees, something that very rarely comes up. This case is also a returnee to the Third Department, as other matters within it had been addressed by the Third Department in a prior decision. However, once again, a carefully-drafted separation agreement will often determine the outcome of a particular issue in a particular case. Of course, it's damned difficult to try to incorporate into an agreement even the most plausible things one might reasonably anticipate - which is why these sorts of cases will always appear from time to time.