I recently was astonished after reading a blog post, on
http://findonlinedivorcelawyer.blogspot.com, about how there are divorce attorneys for both men & women, making it seem that an attorney cannot be one and the same. The blogger wrote about how choosing a divorce attorney for man is different than a divorce attorney for women. It became clear as I read the blog that the writer either just needed something to post about that week, or really has no idea about choosing divorce attorneys as the blogger him or herself made no indication of how a divorce attorney for a man is any different than any divorce attorney for women, except by starting the blog post by stating: “Divorce lawyers for men are specialized in arguing divorce cases from the male point of view. The choice of a divorce lawyer for men is crucial and needs to be made carefully.”
In fact the blogger writes about how to choose a divorce lawyer specifically for a man by stating:
“you must hire a capable lawyer specializing in divorce settlement. There are divorce lawyers for men out there who have extensive courtroom experience and know what needs to be said and done, to get a divorce settled your way.
There are many ways of looking for divorce lawyers for men. You could start with yellow pages and look out for practicing divorce attorneys in your area. Another way to go about it is through recommendations. Talk to your acquaintances who have gone through with a divorce and ask for recommendations. The better and more experienced a lawyer is, the higher will be his fee. Good counsel comes at a high price. Shortlist a few names and meet the lawyers personally, before you decide.”
How are any of the above criteria different than a divorce lawyer for a women??? I believe this blog is incredibly sexist and does a disservice to those who truly take it for face value, believing that they should shop around for an attorney only because he/she represents all men, or claims to focus on the legal issues of men.
First and Foremost, it is my belief that there is no such thing as a male or female point of view when it comes to divorce. Yes, there is a male party and female party, the judge applying the law is male and female and from time to time you must convince a judge why a male is a better parent than a female; however, I do not believe any of these factors means that divorce attorney must argue a male or female point of view. I believe the only point of view acceptable in divorce court is the “client” point of view. I took an oath to zealously represent each and every client I represent, so the only point of view I argue in the court room is my client’s point of view, not some generic male or female point of view.
I cannot tell you how many times an opposing attorney has made the argument to a judge that the court may not and should not take a child away from the mother, solely because the parent is the mother. I also cannot tell you how many times I have argued my client’s point of view as the father, and have listed all of the characteristics that make my client, the father, the better custodial parent in the best interest of the child, and had the court agree with me. I did not argue these characteristics from a generic male view, but from what my client explained to me and told me, I fought for my client from my client’s point of view. If my client is the mother, I would fight from her point of view and list the characteristics making her the preferred custodian, as that is what attorneys do for both men and women.
It is admitted that the New York Family Court and Supreme Court treat men and women differently in Family Law and Divorce cases, and that some attorneys do focus only on women or men, by choice and because of their belief systems. However, after having representing plenty of men and women in divorce cases, and having fought hard and won custody for many men and women, I am 100% sure that the professional relationship between the client and the attorney is all that matters when choosing an attorney. What I mean is that, if the client has faith in the attorney, and If the attorney believes in the client’s case enough to accept representation of the client, and the attorney has the requisite experience, in court and in dealing with other attorneys, coupled with the knowledge of the law due to their specialization in divorce and family law, then that is all that matters when choosing a divorce attorney for a man or a women.
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com
Monday, July 19, 2010
Monday, July 12, 2010
NEW YORK DIVORCE AND FAMILY LAW: CONFIDENTIALITY OF CHILD'S TESTIMONY
In certain custody cases the Judge wishes to speak to the subject child, the child the parents are fighting for custody of, in private in their chambers. This sort of private meeting between the Judge and the child, and in New York the appointed attorney for the child, is legally referred to as a Lincoln hearing. Historically, testimony taken from a child during a child custody case is afforded protections of confidentiality under Article 6 of the Family Court Act.
The meeting between the Judge and the child is referred to as a Lincoln hearing because the confidentiality of such a hearing was established in the matter of, Lincoln v Lincoln (24 NY2d 270 [1969]), where the Court of Appeals held that a court deciding the issue of custody has the right to conduct a confidential interview with the child, outside the presence of the parents and their attorneys, because its first responsibility is and must be the welfare and interests of the child (id. at 272). In so concluding, the Court emphasized the importance of protecting the child from having to choose openly between parents or publicly relate his or her difficulties with them (id.). Indeed, as this Court noted in upholding a Family Court's refusal — in a custody proceeding — to disclose the contents of a Lincoln hearing, "[c]hildren must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships[, and t]his protection is achieved by sealing the transcript of the in camera Lincoln hearing (Sellen v Wright, 229 AD2d 680, 681-682 [1996] [emphasis added, internal citation omitted]).
Recently though, this right of confidentiality during a Lincoln Hearing was challenged. However, it was not challenged during a custody matter, but during an Article 10 proceeding, which deals with abuse and neglect of a child. In The Matter Of Justin CC, 2010 NY Slip Op 05817, the attorney for the daughter requested that a "modified Lincoln hearing" be held with the daughter in the presence of all counsel, but outside the presence of respondents (parents). During the Lincoln Hearing, the daughter provided sworn testimony; respondents were excluded but their attorneys were permitted to be present and afforded a full opportunity to cross-examine her. At the conclusion of the fact-finding hearing, Family Court found that the father abused the daughter and derivatively abused the sons, and that both the mother and the father neglected all four children. The transcript of the daughter's testimony was marked confidential by Family Court and was forwarded under seal to this Court for purposes of this appeal.
On Appeal, the father’s appellate attorney made a motion for the transcript to be unsealed so he could properly refer to it and so it is part of the record. The Appellate Court agreed with the father’s attorney and decided that although there are sound reasons for maintaining confidentiality of a child's testimony in a custody proceeding, there is no basis for providing such a protection at the fact-finding stage of a neglect/abuse proceeding. While the issue at the fact-finding stage of a custody proceeding is what custodial arrangement is in the best interest of the child, the issue at the fact-finding stage of a Family Court Act article 10 proceeding (abuse/neglect case) is whether the agency has proved by a preponderance of the evidence that the child is neglected and/or abused and that the parent is responsible for the neglect and/or abuse. Most significantly, unlike a custody proceeding, the position of the allegedly neglected or abused child in an article 10 proceeding may be adverse to the parent and the parent should therefore be afforded a full opportunity to refer to that testimony by specific reference and make legal arguments based upon it, raising the fundamental due process concerns of right to cross examination for the purposes of an appeal.
Therefore, a child and an attorney for the child must be mindful that even though the parents are not present during said modified Lincoln Hearing, the testimony of a child during a neglect and abuse case will be open to review by the parents and their attorneys. The Court, in my opinion, correctly decided that the worst that can happen in a child custody case is one parent loses custody because of the child’s position regarding which parent they choose to live with is adverse to that parent. However, in an abuse and neglect case the parents may lose parental rights over the child, or be prosecuted by criminal court, or any number of extreme consequences and should be able to properly defend them selves based on all testimony given, even that of the child.
Any opinions, questions or comments are always welcome and appreciated. I look forward to hearing from you if you found this interesting!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com
The meeting between the Judge and the child is referred to as a Lincoln hearing because the confidentiality of such a hearing was established in the matter of, Lincoln v Lincoln (24 NY2d 270 [1969]), where the Court of Appeals held that a court deciding the issue of custody has the right to conduct a confidential interview with the child, outside the presence of the parents and their attorneys, because its first responsibility is and must be the welfare and interests of the child (id. at 272). In so concluding, the Court emphasized the importance of protecting the child from having to choose openly between parents or publicly relate his or her difficulties with them (id.). Indeed, as this Court noted in upholding a Family Court's refusal — in a custody proceeding — to disclose the contents of a Lincoln hearing, "[c]hildren must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships[, and t]his protection is achieved by sealing the transcript of the in camera Lincoln hearing (Sellen v Wright, 229 AD2d 680, 681-682 [1996] [emphasis added, internal citation omitted]).
Recently though, this right of confidentiality during a Lincoln Hearing was challenged. However, it was not challenged during a custody matter, but during an Article 10 proceeding, which deals with abuse and neglect of a child. In The Matter Of Justin CC, 2010 NY Slip Op 05817, the attorney for the daughter requested that a "modified Lincoln hearing" be held with the daughter in the presence of all counsel, but outside the presence of respondents (parents). During the Lincoln Hearing, the daughter provided sworn testimony; respondents were excluded but their attorneys were permitted to be present and afforded a full opportunity to cross-examine her. At the conclusion of the fact-finding hearing, Family Court found that the father abused the daughter and derivatively abused the sons, and that both the mother and the father neglected all four children. The transcript of the daughter's testimony was marked confidential by Family Court and was forwarded under seal to this Court for purposes of this appeal.
On Appeal, the father’s appellate attorney made a motion for the transcript to be unsealed so he could properly refer to it and so it is part of the record. The Appellate Court agreed with the father’s attorney and decided that although there are sound reasons for maintaining confidentiality of a child's testimony in a custody proceeding, there is no basis for providing such a protection at the fact-finding stage of a neglect/abuse proceeding. While the issue at the fact-finding stage of a custody proceeding is what custodial arrangement is in the best interest of the child, the issue at the fact-finding stage of a Family Court Act article 10 proceeding (abuse/neglect case) is whether the agency has proved by a preponderance of the evidence that the child is neglected and/or abused and that the parent is responsible for the neglect and/or abuse. Most significantly, unlike a custody proceeding, the position of the allegedly neglected or abused child in an article 10 proceeding may be adverse to the parent and the parent should therefore be afforded a full opportunity to refer to that testimony by specific reference and make legal arguments based upon it, raising the fundamental due process concerns of right to cross examination for the purposes of an appeal.
Therefore, a child and an attorney for the child must be mindful that even though the parents are not present during said modified Lincoln Hearing, the testimony of a child during a neglect and abuse case will be open to review by the parents and their attorneys. The Court, in my opinion, correctly decided that the worst that can happen in a child custody case is one parent loses custody because of the child’s position regarding which parent they choose to live with is adverse to that parent. However, in an abuse and neglect case the parents may lose parental rights over the child, or be prosecuted by criminal court, or any number of extreme consequences and should be able to properly defend them selves based on all testimony given, even that of the child.
Any opinions, questions or comments are always welcome and appreciated. I look forward to hearing from you if you found this interesting!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com
Monday, July 5, 2010
New York Divorce and Family Law: Watch What You Post
Social networks are causing problems in divorce cases, leading to an abundance of evidence in matrimonial matters. The American Academy of Matrimonial Lawyers says 81 percent of its members have used or faced evidence from Facebook, Myspace, Twitter and other social networking sites, including Linkedin and Youtube, over the last five years.
I myself had a case recently where the mother was not paying child support claiming that she is on public assistance, but my client, the father, brought in dozens of pictures of her in her expensive home, on expensive trips, and the best pictures of her were the one of her in front of her new business, announcing its grand opening.
In a recent article I read on USATODAY.com, it stated that 66 percent of the lawyers surveyed cited facebook indiscretions as the source of online evidence, and Myspace followed by 15% , followed by twitter at 5%. Social networks are now providing evidence that you normally would never get in the every day divorce process. Judges don’t really have a problem letting Facebook pages in, believing that you can’t really fake a Facebook page.
The evidence obtained from social networking sites becomes most damaging when the party uses their face book page to wage a smear campaign against their significant other or forces their child to de-friend the other parent, in effect providing evidence of alienation which is a very serious offense in Family Court which could lead to a loss of custody and/or visitation with your child.
So, the Moral of this Post is the following: What you say can and will be held against you in the Court of Law!!
I advise my clients at the outset to show me their Facebook pages and any other social networking sites they may be on and I tell them to stop posting and being active on those sites while they are going through their divorce or Family Court process. This might be the ultimate challenge for some, but going through a divorce or Family Court proceeding may be the most emotional time of an individuals life and it is extremely easy to lose yourself and give in to your anger and emotions, then as a result write something on one of the social networking sites trash talking your ex. The words you write out of anger on any of these sites may have a lasting impact on your life or the life of your children and other family members.
Also, think twice before posting pictures!! Like the case I described above, the mother did not have to say a word, the pictures spoke for themselves providing us with a clear portrait of the mother’s lavish lifestyle and successful business.
If you must be active on your social networking sites during your divorce or Family Court matter then you should check your privacy settings, de-friend your ex, any of your ex’s friends, or other people who might be frenemies. Also, have anyone who might post any information about you or pictures of you adjust their privacy settings as well.
With regard to social networking sites remember – YOU CANNOT BE TOO CAREFUL!!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com
I myself had a case recently where the mother was not paying child support claiming that she is on public assistance, but my client, the father, brought in dozens of pictures of her in her expensive home, on expensive trips, and the best pictures of her were the one of her in front of her new business, announcing its grand opening.
In a recent article I read on USATODAY.com, it stated that 66 percent of the lawyers surveyed cited facebook indiscretions as the source of online evidence, and Myspace followed by 15% , followed by twitter at 5%. Social networks are now providing evidence that you normally would never get in the every day divorce process. Judges don’t really have a problem letting Facebook pages in, believing that you can’t really fake a Facebook page.
The evidence obtained from social networking sites becomes most damaging when the party uses their face book page to wage a smear campaign against their significant other or forces their child to de-friend the other parent, in effect providing evidence of alienation which is a very serious offense in Family Court which could lead to a loss of custody and/or visitation with your child.
So, the Moral of this Post is the following: What you say can and will be held against you in the Court of Law!!
I advise my clients at the outset to show me their Facebook pages and any other social networking sites they may be on and I tell them to stop posting and being active on those sites while they are going through their divorce or Family Court process. This might be the ultimate challenge for some, but going through a divorce or Family Court proceeding may be the most emotional time of an individuals life and it is extremely easy to lose yourself and give in to your anger and emotions, then as a result write something on one of the social networking sites trash talking your ex. The words you write out of anger on any of these sites may have a lasting impact on your life or the life of your children and other family members.
Also, think twice before posting pictures!! Like the case I described above, the mother did not have to say a word, the pictures spoke for themselves providing us with a clear portrait of the mother’s lavish lifestyle and successful business.
If you must be active on your social networking sites during your divorce or Family Court matter then you should check your privacy settings, de-friend your ex, any of your ex’s friends, or other people who might be frenemies. Also, have anyone who might post any information about you or pictures of you adjust their privacy settings as well.
With regard to social networking sites remember – YOU CANNOT BE TOO CAREFUL!!
Until Next Time,
Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com
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