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Sunday, June 28, 2015

U.S. Supreme Court Holds Same Sex Couples May Not Be Deprived of Right to Marry

In Obergefell et Al. V. Hodges, Director, Ohio Department of Health, et Al., 576 US ____(2015) the U.S. Supreme Court concluded that the right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same-sex may not be deprived of that right and that liberty. The Court held that same-sex couples may exercise the fundamental right to marry. No longer may this liberty be denied to them. Baker v. Nelson, 409 U. S. 810, a one-line summary decision issued in 1972, holding that the exclusion of same-sex couples from marriage did not present a substantial federal question, was  overruled, and the State laws challenged by Petitioners in these cases were held invalid to the extent they exclude same-sex couples from civil marriage on the same terms and conditions as opposite sex couples.

Friday, May 01, 2015

2015 Child Support Standards Chart released March 6, 2015

According to the Child Support Standards Chart, [LDSS 4515 (3/15)] released March 6, 2015, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, the 2015 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,770 and the 2015 self-support reserve is $15,890. 

View and Download the 2015 Child Support Standards Chart 

Combined Parental Income Amount Adjusted to $141,000.

As of January 31, 2014 the combined parental income amount is $141,000. It is adjusted every two years (effective January 31st) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The Child Support Standards Chart is released each year on or before April 1. The income tables are used to determine the annual child support obligation amount pursuant to the provisions of Chapter 567 of the Laws of 1989.

Wednesday, February 18, 2015

Matter of Veronica P. v. Radcliff A., --- N.E.3d ----, 2015 WL 566677 (N.Y.), 2015 N.Y. Slip Op. 01300

Court of Appeals Holds Appeal from a Contested Order of Protection Issued by Family Court, Based upon a Finding That the Subject Individual Has Committed a Family Offense, Is Not Mooted Solely by the Expiration of the Order. 

In Matter of Veronica P. v. Radcliff A., --- N.E.3d ----, 2015 WL 566677 (N.Y.), 2015 N.Y. Slip Op. 01300 the Court of Appeals held that an appeal from a contested order of protection issued by Family Court, based upon a finding that the subject
individual has committed a family offense, is not mooted solely by the expiration of
the order. 

Petitioner sought an order adjudging respondent guilty of the charged offenses, as well as an order of protection against him pursuant to Family Court Act § 842. At
the hearing, both sides called witnesses to testify to the relevant events, and respondent vigorously opposed the entry of an order of protection or any other
adverse adjudication. In an oral decision rendered on February 4, 2011, the court found that respondent was guilty of a family offense, concluding that he had committed acts constituting harassment in the second degree. That same day, the court entered a written two-year order of protection against respondent. The written order stated that a family offense petition had been filed in the case, listed the date of the petition and noted that the order was being issued after a hearing at which respondent had been present. The order directed respondent to stay away from petitioner's home and to refrain from committing assault, harassment, stalking and certain other offenses against her. (The written did not declare that respondent was guilty of a family offense.)

          Respondent appealed, but while the appeal was pending, the order of protection expired. The Appellate Division unanimously dismissed the appeal as moot, citing the expiration of the order (Matter of  Veronica P. v. Radcliff A., 110 AD3d 486, 486 [1st Dept 2013] ). The Court of Appeals reversed. It observed that in general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment. The ability of an appellate decision to directly and immediately impact the parties' rights and interests is among the most important aspects of the mootness analysis, for otherwise the analysis might turn on inchoate or speculative matters, making mootness an unwieldy doctrine of a thousand "what ifs." On the other hand, even where the resolution of an appeal may not immediately relieve a party from a currently ongoing court-ordered penalty or obligation to pay a judgment, the appeal is not moot if an appellate decision will eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal.  In this case, the expiration of the order of protection did not moot the appeal because the order still imposed significant enduring consequences upon respondent, who might receive relief from those consequences upon a favorable appellate decision. Because the order of protection on its face strongly suggested that respondent committed a family offense, the court in a future criminal case or Family Court proceeding would likely rely on the order to enhance a sentence or adverse civil adjudication against respondent. Although the order did not declare respondent guilty of a family offense in so many words, the order noted that it was issued after a hearing in a family offense proceeding, and it expressly barred respondent from victimizing petitioner by committing a variety of crimes nearly identical to those charged in the family offense petition. Thus, a court examining the order may readily discern that Family Court found respondent guilty of committing a family offense against petitioner and issued an order of protection to prevent him from continuing to offend against her. Armed with that information, the court in a future case may increase the severity of any applicable criminal sentence or civil judgment against respondent. In the face of the substantial probability that the order of protection would prompt severely
deleterious future legal rulings against respondent, an appellate decision in his
favor would directly vindicate his interest in avoiding that consequence of the
order. The Court found that the the order of protection had other potential legal consequences that render it susceptible to appellate review.  Beyond its legal consequences, the order of protection placed a severe stigma on respondent, and he can escape that stigma by prevailing on appeal Rubenstein. The order essentially labeled respondent a family offender. Given the totality of the enduring legal and reputational consequences of the contested order of protection, respondent's appeal from that order was not moot.

Respondent urged the Court to hold that an appeal from any expired order of  protection, other than one entered upon stipulation, is not moot. The Court expressed no view on the correctness of that proposed holding because it was unnecessary to resolve the case. The order was revered and the matter remitted to the Appellate Division for further proceedings in accordance with the opinion.

Thursday, January 08, 2015

Second Department Holds That it Is Only Appropriate for an Attorney for a Child to Form an Opinion as to What Would Be in the Child's Best Interest, after Gathering Evidence and Making a Complete Investigation.

In Matter of Brown v Simon,--- N.Y.S.2d ----, 2014 WL 7392499 (N.Y.A.D. 2 Dept.),
the parties entered into an agreement to share joint custody of the child, with the mother to have residential custody, which was  embodied in an order entered on consent of the parties. Shortly after the agreement was entered into, the child's day care provider reported to the father that the child was not allowing herself to be cleaned when her diaper was being changed, and her resistance had gotten worse. Although an examination of the child by her pediatrician revealed no physical evidence of sexual abuse, the day care provider reported her concerns to the Office of Child Protective Services (CPS). The father and mother each filed a petition seeking sole custody of the child.   Before a hearing on the petitions was held, the attorney for the  child, based on the out-of-court statements of the day care provider, made an application for the father to be awarded temporary custody of the child. The Family Court granted that application. The Appellate Division pointed out that such an award was improper, as it was based on the disputed hearsay allegations ( Matter of  Swinson v. Brewington, 84 AD3d 1251).  

The Appellate Division held that during the hearing on the petitions, the Family Court erred in permitting the father to testify that the child told him that the mother's other daughter "did it." The father's testimony was intended to show that the mother's other daughter might have sexually abused the subject child. The statement was inadmissible hearsay, and did not qualify as either prompt outcry evidence, or as a spontaneous declaration. The admission of this hearsay statement could not be deemed to be harmless, as this hearsay statement was the only evidence presented to support the allegations that the child had been sexually assaulted and that the sexual assault was committed by the child's older sibling.  Both CPS and the Administration for Children's Services investigated the allegations and concluded that the allegations were unfounded, and an expert in the area of child abuse concluded that there was no evidence that the child had been physically or sexually abused. 

The Appellate Division held that Family Court also erred in overruling the mother's objection to the testimony of her other daughter's treating physician about his treatment of that child on the ground that the Privacy Rule standard of the Health Insurance Portability and Accountability Act of 1996 ( HIPAA) for disclosure of her other daughter's medical information was not met (45 CFR 164.512 [e][1][i], [ii] ). The mother's other daughter was not a party to the proceeding, and permitting her treating physician to testify in violation of HIPAA directly impaired the interest protected by the HIPAA Privacy Rule of keeping one's own medical records private. As such, the Family Court should have sustained the mother's objection to this testimony, This error could not be deemed harmless, as the physician's testimony was used by the father and the attorney for the subject child to portray the mother's other daughter as seriously disturbed.

  Significantly, the Second Department held that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence (citing Matter of  Carballeira v. Shumway, 273 A.D.2d 753, 756 where the Third Department said that: “A Law Guardian should not have a particular position or decision in mind at the outset of the case before the gathering of evidence.”) It is only appropriate for an attorney for a child to form an opinion as to what would be in the child's best interest, after such inquiry. Here, it was inappropriate for the attorney for the child to have advocated for a temporary change in custody without having conducted a complete investigation. The attorney for the child acknowledged that his application was based solely on his discussion with the father and the child's day care provider, which was located near the father's residence, and that he did not speak to the mother or the child's other day care provider closer to the mother's residence.

It remitted the matter to the Family Court for a de novo hearing and directed  the Family Court to appoint a new attorney for the child.