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Results tagged “Caselaw Round-Up” from Upstate New York Family Lawyer Blog

#732 Third Department Round-Up for October 17, 2013

July 19, 2015

732 Post 10-17-13 Third Department October.pngNot long ago I analyzed a case very similar to this one, involving a District Attorney's office that delayed beyond the statutory six months on an indictment. As a result, the indictment was dismissed outright. I remember stating that these sorts of things are quite rare. Well, here we have another instance of such a delay, again resulting in the dismissal of the indictment. So ... maybe not as rare as I once thought.

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#731 Third Department Caselaw Round-Up for October 17, 2013

July 19, 2015

731 Post 10-17-13 Third Department October.pngThis case indicates why it is so incredibly important to ensure that everything makes it into the record. Otherwise, there could be a basis for either no appeal or, just the opposite - a reversal on appeal.

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#730 Third Department Caselaw Round-Up for October 17, 2013

July 19, 2015

730 Post 10-17-13 Third Department October.pngAnd here is Part 2 of that weird case ping-ponging between Schuyler County Family Court and Tompkins County Family Court, from blog post #725.

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#729 Third Department Caselaw Round-Up for October 17, 2013

July 18, 2015

729 Post 10-17-13 Third Department October.pngAnd here is Part 2 of the previous blog post.

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#728 Third Department Caselaw Round-Up for October 17, 2013

July 18, 2015

728 Post 10-17-13 Third Department October.pngHere's another two-parter, which is also another termination of parental rights decision.

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#727 Third Department Caselaw Round-Up for October 17, 2013

July 18, 2015

727 Post 10-17-13 Third Department October.pngMost custody battles are pretty innocuous and easily resolved. In fact, the overwhelming majority get resolved on consent with the remainder being tried and the parties accepting the results of the trial. I would imagine that somewhere around 1% of all custody disputes ever actually make it to an appeal.

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#726 Third Department Caselaw Round-Up for October 17, 2013

July 17, 2015

726 Post 10-17-13 Third Department October.pngSometimes, judges get creative. And that's not necessarily a bad thing. In fact, I laud judges for being intellectually curious and daring enough to craft and tailor unique orders according to the needs of the children that come before them. However, if that creativity is not supported by the testimony adduced at trial, then the creative order becomes so much form over substance. And that's no good for anyone.

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#725 Third Department Caselaw Round-Up for October 17, 2013

July 17, 2015

725 Post 10-17-13 Third Department October.pngThis is such a weird and tortuous case, being that it evolved from the Family Courts of two abutting counties, that I'm going to treat it as a Part 1 and a Part 2. Part 1 begins in Tompkins County Family Court and Part 2 ends in Schuyler County Family Court. Nevertheless, the same judge presides over all matters in each county.

I wouldn't normally write a blog post this way, but I have a thing for both the alphabetical order of decisions and attributing decisions to specific counties.

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#724 Third Department Caselaw Round-Up for October 17, 2013

July 17, 2015

724 Post 10-17-13 Third Department October.pngI always enjoy custody cases that involve the UCCJEA, if only because they never fail to make things interesting. I've had attorneys make all sorts of asinine arguments using this statute. The main thing you have to remember about the UCCJEA is The Six Month Rule. Basically, if a child has been living in another state, upon the consent of both parents, then the child's home state is almost always the state he or she has been living in for the last six months. Of course, things are never quite that easy.

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#723 Third Department Caselaw Round-Up for October 17, 2013

July 17, 2015

723 Post 10-17-13 Third Department October.pngSorry about not posting for the past two days but I was simply too swamped with work.

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#722 Third Department Caselaw Round-Up for October 17, 2013

July 14, 2015

722 Post 10-17-13 Third Department October.pngThe Third Department will rarely call out a judge for screwing up a case. It's just not their style. Instead, you need to read between the lines. And while the Third Department recognizes that Family Court has broad discretion, it gets very upset when any of the following three things happen - all of which happened in this particular case: 1) important matters completely fail to make it into the record, 2) the Court does things that no one has specifically requested, and 3) the Court's bias is showing.

And, yes, there was a damned good reason for the mother getting crushed at trial.

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#721 Third Department Caselaw Round-Up for October 17, 2013

July 14, 2015

721 Post 10-17-13 Third Department October.pngI generally read the decisions pertaining to criminal law because, like everyone else, I like a good laugh every now and then. And these decisions never disappoint. It always amazes me how stupid people can be - and still expect that they aren't going to get caught. Seriously?

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#720 Third Department Caselaw Round-Up for October 17, 2013

July 13, 2015

720 Post 10-17-13 Third Department October.pngThis is what one would call a pyrrhic victory, no matter how you look at it.

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#719 Third Department Caselaw Round-Up for October 17, 2013

July 13, 2015

719 Post 10-17-13 Third Department October.pngHere is a very interesting termination of parental rights case that involves some excellent lawyering by both trial counsel and appellate counsel.

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#718 Third Department Caselaw Round-Up for October 17, 2013

July 12, 2015

718 Post 10-17-13 Third Department October.pngWhile, normally, these decisions are often affirmations of cases that involve courts saying "Go Directly to Jail, Do Not Pass Go, Do Not Collect $200.00", this one is a "Get Out of Jail, Free" decision. And, yeah, I played a whole lotta board games when I was a kid.

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#717 Third Department Caselaw Round-Up for October 17, 2013

July 12, 2015

717 Post 10-17-13 Third Department October.pngWe just covered a custody battle between parents the other day. Here, we have a custody battle between a grandparent and a parent, specifically, a mother and her own mother. And where parents only have to show a change in circumstances with a best interests analysis, grandparents have to show a change in circumstances, extraordinary circumstances, and then a best interests analysis. And extraordinary circumstances can be difficult to prove ... as this grandmother discovered to her chagrin.

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#716 Third Department Caselaw Round-Up for October 17, 2013

July 11, 2015

716 Post 10-17-13 Third Department October.pngThis decision is interesting insofar as it illustrates the intersection of sex offenses with child custody determinations. Any guess as to which party gets the kids when one side is found to have concealed the fact that Grampa is actually Bad Grampa? Seriously, you can't make this @#$% up.

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#715 Third Department Caselaw Round-Up for October 17, 2013

July 11, 2015

715 Post 10-17-13 Third Department October.pngHave you ever wondered how slightly the Third Department could alter a decision, order, or judgment of an underlying trial court and still consider such alteration a reversal? Well, obviously, "modification" would be a better word, but I take the position that ANY change in the underlying trial court's decision, order, or judgment is necessarily a reversal of that trial court, however trivial it may seem (because it's probably NOT trivial to the appellant).

In any event, this decision illustrates just how hollow victory can be on appeal. The greatest WTF-moment can be found in the final footnote, footnote #4. I guess the Third Department was saving that last footnote for its droll punchline.

Also: can you imagine how angry the appellant must be? The appeal itself must have cost substantially more than the relief the appellant received from the appeal.

Also, too: consider how deft that trial judge is! I know him well and he is rarely overturned on appeal. I can picture him reading this decision and asking a single, short question: "Really?"

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#714 Third Department Caselaw Round-Up for October 17, 2013

July 10, 2015

714 Post 10-17-13 Third Department October.pngSometimes, you'll be reading a decision and think, there's no way in hell that there is an appealable issue here. And then something subtle jumps out at you. Sometimes I miss the subtleties on the first reading, but not this time. The reason for my sensitivity to the red flag in this case is that it has happened to me several times in Family Court over the years. Most times, these sorts of mistakes are caught before the order is made permanent. But not in this decision. See if you can spot the error.

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#713 Third Department Caselaw Round-Up for October 17, 2013

July 10, 2015

713 Post 10-17-13 Third Department October.pngIt seems that the Third Department wanted to clear its calendar of several child support decisions this week, given that they do not often arise. Here is yet another one.

This case is interesting for the fact that the appellant was pro se.

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