May 31, 2010
When custody or child visitation issues occur between separated or divorced parents, one or both parents sometimes seek to curry favor with the child or children. The parent takes this action either to ensure that he or she will receive custody or receive child support payments. In addition to currying favor with the child, some parents seek to undermine the relationship between the child and the other parent. When the child develops a strong resistance or rejection of a parent, that is disproportionate to that parent’s behavior, and this undermines that parent’s relationship with the child, this is referred to as parental alienation syndrome(PAS).
In a Canadian study conducted between 1989 and 2008 involving claims of parental alienation, there were allegations that parental alienation syndrome was present in 175 cases. The study showed that in 106 out of 175 cases, the courts found that there was parental alienation present. In 60% of the cases the mother was the parent involved in alienating the child from the father. In 31% of the cases the father was the parent involved in alienating the child against the mother. The study found that although there were gender differences involved in the alienation of children, mothers were more likely to make unsubstantiated claims of alienation against fathers. The study also found that alienation is most commonly perpetuated by the custodial parent against the noncustodial parent.
In the Canadian study the most common judicial remedy of dealing with parental alienation was to modify the custody arrangement.
Parental alienation is being recognized by the courts in New York more readily then it has been in the past. There is still a reluctance among many judges to use changing custody as a means of addressing this issue. Parental alienation may have the impact of reducing one parents access to visitation with his or her children. The more significant affect of parental alienation is to deprive a child from having a relationship with two loving parents.
Should you have any questions or issues concerning parental alienation feel free to contact Elliot Schlissel, Esquire at Schlissellawfirm.com or 1-800-344-6431.
May 29, 2010
Is it a common practice for police to use a search warrant to strip search every person in a location without a strong indication the place is “devoted” to criminal activity.
Recently the New York State Court Of Appeals said that drugs found on one man in 2006 during a raid of an apartment in Syracuse can not be used as evidence. Robert Mothersel and six other individuals were stripped searched on this occasion.
The New State Court Of Appeals said broad-based search warrants are unconstitutional unless police surveillance shows every person at a particular location would have contraband or criminal evidence on them. In the case involving Robert Mothersel, the court found the strip searches were inappropriate. Mr. Mothersel was stripped searched and a body cavity search was conducted. Drugs were found in his buttocks. At the time of the search Mr. Mothersel was not under arrest. The Court of Appeals found the drugs found in Mr. Mothersel’s buttocks were illegally obtained and could not be used against him in court.
A Syracuse detective involved in the case stated at a court hearing “in the execution of hundreds of all-person-present warrants, the people were routinely stripped searched and required to facilitate the examination of their anal and genital cavities.”
Judge Libbman, writing for the New York Court Of Appeals, described circumstances wherin such broad-based strip search warrants would be approved.
He stated “we think it is clear that surveillance of a location may yield a factual basis to infer with the requisite force that the place is devoted to an ongoing illicit purpose, such as the manufacturing or marketing of narcotics, . . . and that all those present at the time of the contemplated search will probably in possession of contraband or other specified evidence of illegality.”
Strip searches, and especially body cavity searches, can amount to the deprivation of the most basic rights of privacy a United States citizen should expect. We hope you never experience this humiliating situation. If you or a family member were improperly subject to an outrageous violation of your right to privacy feel free to call us at 1-800-344-6431 or contact us by email. We will protect your rights.
May 28, 2010
Governor David Patterson, in the State of New York has recently signed into law the Family Health Care Decisions Act. This statute authorizes health care decisions to be made for a person who is incapacitated and has not prepared a healthcare proxy specifically indicating his or her wishes. This statute authorizes family members without a written advanced directive to make decisions to withhold or withdraw life support systems for their family members.
The best means for dealing with making of medical decisions, if you should become disabled or incapable of making your own medical decisions, is to execute a health care proxy appointing someone you trust to make these decisions for you. Unfortunately more than 75,000 incapacitated individuals die each year in the State of New York with out having a health care proxy. Court decisions have ruled that life sustaining treatment cannot be withheld or withdrawn without clear and convincing evidence that the person would decline if they could. This has resulted in people being subject to fruitless treatments that actually violates their personal wishes or religious beliefs.
The new statue sets up a hierarchy to determine those individuals who can make the choices. The list of individuals capable of making these choices range from a guardian, to spouse, to a domestic partner, an adult son or daughter, parent, adult brother or sister, and/or some other relative or close friend. The purpose of the statue is to prevent needless medical treatment for those who, if they were competent, would not want it.
Image courtesy of Sun Sentinel
May 26, 2010
Family members of a disabled woman have filed a lawsuit against a nursing home in Aurora, Illinois. Their family member, a disabled woman, was sexually assaulted while a resident of the Fox River Nursing Home.
The lawsuit alleges that Sylvester Grays was a patient at the nursing home. Mr. Grays, age 39, sexually assaulted a senior woman who suffers from dementia. The assault left her “in a bruised, battered, and bloody condition” according to the lawsuit.
Mr. Grays is now awaiting trial on eight counts of aggravated criminal sexual assault and battery. He has previously served prison terms for burglary and retail theft in Rook County, Illinois.
Nursing homes have a responsibility to protect their patients. When they know that a dangerous individual is in their facility, he should be closely monitored or restricted.
The nursing home industry is a growing industry in the United States. They are profit driven and this sometimes leads to their being lax in their responsibilities. Should you, a member of your family, a friend or loved one suffer from inappropriate conduct, abuse, or negligence related to a stay in a nursing home call us at 1-800-344-6431 or contact us by email. We can help you protect seniors for inappropriate practices or conduct.
May 24, 2010
Judges in New York tirelessly work to provide citizens fair and impartial justice often under difficult conditions. Judges should not be treated as second class citizens.
The State Legislature in New York needs to pass a law raising the salaries of judges. The problem is State the Legislature is concerned how voters will react to their taking this action.
Judges have been forced to bring a lawsuit to deal with the issue of their salary increases. Recently the New York Court Of Appeals, the highest court in the state of New York, ruled that the state legislature violated the New York State Constitution by tying raises for judges to unrelated matters. The court stated that judges raises should be considered on the basis of merit and free from political consideration. However it is still up to the State Legislature to pass a law authorizing the salary increases for judges. Unfortunately, due to the economic circumstances that the state of New York finds itself in, it is unlikely this will happen in the near future.
It is extremely difficult to attract the most highly qualified men and women to the bench in the State of New York when they are so poorly compensated for their hard work and diligent efforts.
May 21, 2010
Nine states are currently considering legislation to increase or eliminate mandatory retirement ages for judges. New York is one of those states. In New York the mandatory retirement age for judges is currently 70 years of age.
State Senator Thomas Duane from Manhattan has requested the repeal of mandatory requirement ages for judges in the State of New York. Currently judges in New York state must retire when they turn 70. They can remain on the bench for up to three 2 year terms if they can prove their physical and mental fitness to continue serving in judicial capacity.
It will be necessary to amend the New York State constitution to change the forced retirement of New York judges. This will require two separately elected Legislatures to pass this amendment to the state constitution. It will then need to be passed by the voters in a state wide referendum before it can go into effect.
Federal judges do not have mandatory retirement ages. Many federal judges serve well into their 80′s.
United States Supreme Court Judge John Paul Stevens, age 90, has recently indicated he is going to retire. Justice Stevens had a remarkable career on the United States Supreme Court and his age has never slowed him down.
I regularly appear before Supreme Court Judges in their 70′s. They are experienced, dedicated, public servants should not have their judicial careers forcibly curtailed due to an antiquated forced retirement law. I recently celebrated my 60th birthday. Friends told me that 60 is the new 40. I have reflected on this suggestion. I now have20 more years of experience as an attorney now than I had when I was 40. I am better at almost every aspect in handling the rigors of my profession today then I was when I was 40. I suspect the same is true for judges with many years of experience. I urge the Legislature to quickly pass the law eliminating forced judicial retirement.
Picture courtesy of toonpool.com.
May 19, 2010
There are presently more than a dozen pieces of legislation pending in the New York State Legislature to expand the use of DNA material. Recently a DNA data bank was utilized by Westchester County legal authorities to match the DNA of Francisco Acevedo for the murders of three woman in Yonkers from 2009.
Francisco Acevedo was arrested while driving intoxicated on January 26, 2009 in Brentwood Long Island. As part of that arrest Mr. Acevedo’s DNA was taken from him last year while he was serving a prison sentence in upstate New York. This was a result of multiple felonies convictions for driving while intoxicated convictions.
His DNA was compared to a data bank maintained by the State of New York which was established in 2004. The data bank linked him to three murder victims. Mr. Acevedo now faces multiple charges of first and second degree murder. Presently state law requires DNA to be collected from individuals convicted of felonies and a variety misdemeanors. The state of New York currently obtains DNA material from approximately 46% of all individuals convicted of crimes.
State Senator Dean Skelos, from Rockville Centre New York , wants the law modified so that DNA samples are taken from every single person arrested or under suspicion for committing a felony or misdemeanor.
State Senator Skelos claims that the Acevedo case is a good example of the types of crimes that would be solved if the states DNA data bases were expanded. Senator Skelos further stated that the expanded data base could solve crimes going back as long as 30 years. Senator Skelos was asked if he had privacy concerns regarding the expanding of the data base. His response was his job was to protect the public.
Expanding DNA data bases may be helpful in solving some crime however the over expansion of DNA collection makes me think of Aidous Hudley’s book “A Brave New World”. Americans are entitled to rights of privacy. A reasonable accommodation should be made for DNA collection but not at the expense of basic rights for American citizens.
If you are under suspicion or charged with a crime, contact the law office of Elliot S. Schlissel. We have been helping our clients with criminal matters for more than 30 years. Contact us at 1-800-344-6431 or by e-mail.
Picture courtesy of criminals.com.
May 17, 2010
New York Governor David A. Patterson has recently signed a law that modified the statutory language regarding attorneys who represent children in the Family Court of the State of New York . We wrote about an attorney’s obligations to a child clint HERE. Attorneys representing children in New York Family Courts have the title “attorney for the child”. The former terminology referred to attorneys who represented children as “Law Guardians”.
The change is much greater than just a change in terminology. It is a change in philosophy. The terminology “attorney for the child” makes it clear that the court is dealing with a lawyer advocate for the child’s position. The proper role for the attorney for the child is to advocate what the child wants in delinquency proceedings, child custody proceedings, visitation proceedings, foster care proceedings and other proceedings brought before the Family Court in the State of New York.
The initial change in the statutory language from Law Guardian to an attorney for the child started in October 2007 when Chief Judge Judith Kay sighted section 7.2 of the Rules of the Chief Judge in which she adopted advocacy standards for attorneys who represented children recommended by the Milla Commission.
“In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in manner consistent with child’s capabilities and have a through understanding of the child’s circumstances” section 7.2 states.
” If the child is capable of knowing, voluntary and considered judgement, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interest”.
This rule requires an attorney to explain the options available to his or her child client. The attorney can make recommendations to the child which the attorney feels would be in child’s best interest. The attorney can only deviate from the child’s wishes if there is a “substantial risk of eminent, serious harm to the child” if the child wishes are granted.
The purpose of the change in language is to eliminate any confusion over what role the attorney for the child fills. Attorney’s for children now must vigorously and diligently advocate the child’s position. They must not present their opinion if they disagree with the child’s position. This law is designed to see that children’s wishes are clearly, concisely and diligently presented to court. Query: will this make custody litigation a popularity contest? Will the child pick the parent who gives in to the child’s wishes instead of guiding the child in what is in the child’s best interest?
Law office of Elliot Schlissel have been representing both mothers and fathers in child custody, visitation proceedings, child support matters, and other types of litigation before the family courts for more than 30 years. Call us at 1-800-344-6431 or email us for a free consultation.
Picture courtesy of warrickcasa.us.
May 14, 2010
Justice Spinner of Suffolk County New York has taken Immigrant Savings Bank to task for refusing to engage in good faith settlement conferences required by a 2008 amendment to the New York Banking Law.
Judge Spinner has ordered Immigrant Mortgage Company to pay a Huntington New York couple a $100,000 as compensation for the banks “deplorable” mortgage agreement and its bad faith foreclosure negotiations.
In his decision Judge Spinner stated “the court…determines that the imposition of exemplary damages upon (the plaintiff bank) is equitable, necessary, and appropriate in light of plaintiff’s shockingly inequitable, bad faith conduct, as well as to serve as an appropriate deterrent to any future outrageous, improper and wrongful activities”. His decision was in the case of Immigrant Mortgage Company v. Corcione, Q009/28917.
In addition Justice Spinner has also “forever barred” Immigrant from collecting interest on the $302,500 mortgage as well as any legal fees, cost “or any sums other then the principal balance”.
In their lawsuit defendants Jane Corcione and Anthony Corcione claimed that Immigrant refused to engage in good faith settlement conferences, as explicitly required by the 2008 amendment to the banking law.
The judge singled out in his decision a half a dozen of the mortgage agreements “deplorable” and “distressing” provisions. One of the provisions singled out by Judge Spinner was a clause which forever prohibited the Corcione’s from seeking protection under the United States Bankruptcy Code. In his decision Judge Spinner stated that if this clause was enforceable against the Corcione’s it would be able to preempt federal insolvency statutes. Judge Spinner’s decision stated that a pre-bankruptcy waiver should under no circumstances be enforced against consumer debtors. His decision found the waiver was unconscionable, unreasonable, over reaching and absolutely void as against public policy.
Judge Spinner criticized the mortgage agreements “general release” which discharged the bank from any potential liability in “any and all claims that are relating to, concerning, or underlying the loan, and brokering, closing, servicing, or administration of the loan.” Justice Spinner’s decision stated “the obvious and factually clear intent of this clause is to circumvent each and every state and federal law in the State of New York intended to regulate the mortgage banking industry.”
This decision by Justice Spinner is the third time he has sanctioned a mortgage lender for its conduct in a foreclosure proceeding. Justice Spinner is the presiding judge in Suffolk County Residential Mortgage Foreclosure Conference Part. Suffolk County has the most foreclosure cases pending in the State of New York.
Should you find yourself facing a foreclosure on your home contact the foreclosure defense attorneys at the Law Office of Elliot Schlissel. We have more than 30 years experience in defending lawsuits by creditors. Call us at 1-800-344-6431 or send us an email.
Picture courtesy of desparateexes.com.
Police officer Christine L. Miller was off duty. She drove some friends to O’Leary’s Bar and Restaurant. Christine was an officer in the Sunset Hills Police Department.
Christine was served numerous drinks at O’Leary’s Bar. After consuming “a high quantity” of alcohol Christine got in her car to drive home. Christine drove her Mitsubishi east in the west bound lane of Darity Ferry Road which caused an accident with another vehicle. Four young people were killed and one was injured in the traffic accident. Christine has been charged with four counts of first degree involuntary manslaughter plus one count of second degree assault. She is currently on an unpaid suspension from the Sunset Hills Police Department.
The civil lawsuit which was filed shortly after the criminal charges were brought against Christine was settled for $2.25 million. At the time of the crash Christine’s blood alcohol level was 0.169. The threshold for driving while intoxicated was .08%.
The parents of the victims sued both Christine and O’Leary’s Bar and Restaurant.
They claimed that the employees of the restaurant knew that Christine was intoxicated and did not prevent her from driving home or assist her in calling a taxi cab. The civil lawsuit also claimed the bar workers served Miller alcoholic beverages even though her speech was slurred and her gaze was unsteady.
Wrongful death lawsuits often result in large settlement or awards from juries. Should either you, a friend, or a loved one have the misfortune of being involved in a tragic accident call the law office of Elliot S. Schlissel at 1-800-344-6431 or email us.
Picture of Ms’ Miller’s car after the accident courtesy of pulledover.