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

Family and Divorce Law in New York: Family Court Not Just For Families Anymore

The Appeals Court in Albany, New York decided a Madison County Family Court Judge erred when he denied Jessica D.’s request for an order of protection for “reasons of public policy”. Even though the nature of the relationship met the standard of intimacy required by Family Court Act, section 812, as established by the legislature, Judge Dennis K. McDermott denied the request because Jessica D. was married and Petitioned for the order of protection against an on-again, off-again, boyfriend. In fact, Jessica D. was still living with her husband and daughter when she went on a ten-day liaison with her boyfriend, and thereafter filed a petition in Family Court for an order of protection alleging that he hit her in the leg and threatened to shoot both her and her husband.

The third department decided the main purpose of Family Court Act Article 8, section 812, is “providing reasonable means and methods of protection and enforcement for victims of domestic violence…” Walker v. Walker, 86 NY2d 624 (1995). In essence, the Court decided it was legislative intent to extend Family Court jurisdiction to cover relationships such as the one had between the parties herein. While those in "intimate" relationships were intended mainly to be non-married boyfriends and girlfriends, the statute explicitly says that no sexual relationship need exist for an alleged abuse victim to seek an order of protection against his or her abuser.

The Judge who made the underlying Family Court decision questioned Jessica D.’s commitment to her marriage. However, that is not the point of the Family Court Act, especially not of Article 8, section 812. Regardless of Jessica D.’s commitment to her family and marriage, she required protection against someone she was in an “intimate” relationship with, as established by the Family Court Act and interpreted by case law. Justice Mercure wrote, "Courts have no right to add to or take away from [the statute's plain] meaning. He went on to explain that the Court’s sole objective "is to discern and apply the will of the Legislature, not the court's own perception of what might be equitable."

In my personal opinion there is a shift in the Court away from traditionalism and judgment to modernity and understanding. What I mean is that, in the past adultery was a shameful and punishable act in Family and Matrimonial Courts. In New York, it is a ground for divorce that used to hold major weight in decision of equitable distribution, custody and other Family Court and Matrimonial Decisions. Lately, though, I observe a shift away from the ideal of preserving the sanctity of marriage, to a larger understanding and acceptance of the changing nature of relationships. One major indicator of such a shift, is the Senate passing No Fault Divorce in New York. Is this a positive or negative change, I’m not sure yet, but I believe the next few years will prove very interesting in the field of Family and Matrimonial Law, not just in New York, but all over the country.

If you have an opinion or any comments to add they are always appreciated and welcome.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com

New York Divorce and Family Law: Picking Favorites

PICKING FAVORITES BETWEEN CHILDREN?

I recently read in an article, that a study was done suggesting that in every family with more than one child, there is a favorite. The study goes on to suggest that while most parents deny having a favorite child and the issue is commonly laughed off, having a favorite can have serious future consequences, for both the favored kid and other children in the family.

Playing favorites can cause major resentment between children, especially toward the favorite child. Also, the favorite child may feel extreme guilt for how hard the other children had to work for their parent’s affection unlike themselves. The favorite child may have extra stress from having to always prove themselves to their parent, while the non-favorite may grow up well adjusted due to the lack of such stress.

During a Divorce or Custody dispute it is easy to favor the child who wishes to reside with you, or the child who sticks up for you, takes your side in the dispute. One must remember that each child during such a dispute or divorce loves their parents and should not be forced to take sides, and no matter what their wishes are during the proceeding the parents must show all of their children equal love and devotion.

If a child expresses negative feelings about your behavior toward them as opposed to your other child or children, then commend them for expressing their feelings as most of the time children will not properly communicate with their parents about such issues. Listen to your children and do a person evaluation of your self, your feelings and your behavior to determine if there is a basis for your child feeling that way. Most importantly and what turns out to be the most difficult task is to be honest with yourself. There’s some degree of favoritism in every family, so this should not be something a parent is ashamed of or denial about. Children are all different and favoritism is natural, it just must not go too far.

Tips for parents when one child feels they are picking favorites:

a)Communicate your thoughts and feelings to your children and make them understand all of them are loved in their own way and for their differences.
b)Listen to your children and don’t ridicule them for their feelings with regard to this issue, rather commend them for speaking up.
c)Do a personal self-evaluation and do your best to correct the behavior that is to blame for your children’s feelings.
d) Most importantly, give your children the benefit of the doubt, as they are the ones that are being shaped into adults and are the ones that will suffer as a result of any negative behavior toward them, whether conscious or subconscious on your part.

If you wish to comment on this issue, or if you ever felt that you were favored or that your siblings were favored, I would love to hear from you!!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com

New York Divorce and Family Law: Violance Against Women Act

The Justice Department has decided that the criminal provisions in the Violence Against Women act should be enforced in cases involving gay and lesbian relationships.

The Violence Against Women Act was first passed by Congress in 1994. Its provisions made it a federal crime to cross state lines with the intent of committing domestic violence, stalking, or violating a protection order. The government’s application of laws to gay and lesbian relationships has been a matter of great contention. The Defense of Marriage Act, a 1996 law, required the federal government to define terms like “marriage” and “spouse” as legal categories that can only be understood as a union between one man and one woman.

Since the Violence Against Women Act includes terms not covered by the Defense of Marriage Act, like “dating partner” and “intimate partner”, and since the provisions of the Act make clear it applies to conduct against male, as well as female, victims, it has been determined that the text of the Act is gender-neutral.

The expansion of the Violence Against Women Act, like the amendment to Article 8 of the Family Court Act in New York which extended the ability of an individual to obtain an Order of Protection against any individual they have been in an intimate relationship with regardless of whether such persons have lived together at any time, is a step towards equality and recognizing that same-sex couples are subject to the same issues facing other committed couples, such as domestic violence.

If you are seeking more information about Family Offense Proceedings or any other Family Court preceding in New York you may go to:
http://www.nycbar.org/pdf/famguide_ms.pdf

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com