February 4, 2010
On December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.
Constructive Abandonment – No Sex for a Year:
Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.
Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.
Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.
Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.
The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”
The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.
If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.
The Law Office of Elliot S. Schlissel has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.
Picture courtesy of clemmentlaw.
November 30, 2009
There is a growing feeling among fathers who deal with the Family Courts and the Supreme Courts in the State of New York on matrimonial and family law matters that they are being treated unfairly. The law in the State of New York says that fathers and mothers have equal rights to custody. There is no presumption that mothers should receive custody and fathers should pay child support. However, many fathers who have dealt with the legal system come away with a sour taste in their mouth due to bias in favor of the mother.
Father’s rights attorneys are matrimonial and family law attorneys with extensive experience in protecting the rights of fathers involved with custody, support and visitation matters. If you feel you are being treated unfairly, contact the father’s rights attorneys at the Law Office of Elliot S. Schlissel. We can help you!
Picture Courtesy of SouthWesternDifference.info
November 24, 2009
Nassau County is one of the richest counties in the United States. The Family Court in Nassau County is located at 1200 Old Country Road, Westbury, New York 11590. The judges, court officers, administrators, clerks, attorneys and litigants are all presented with difficult situations.
The courthouse is totally inadequate to serve as a location for the Family Court of Nassau County. The building is old, dilapidated and too small. The air conditioning does not cool the hallways.
There is no adequate waiting room. Lawyers and their clients are often forced to wait in crowded hallways. God knows what would happen in this overcrowded building should there be a fire. During the past fifteen (15) years, Suffolk County, Kings County and Queens County have built beautiful new court facilities. Unfortunately, Nassau County has not had the foresight to provide its residents with a decent, adequate, modern facility. This is an embarrassment! The building structure is not worthy of the litigants, judges, clerks, court officers and the community it serves.
Picture courtesy of Google Maps.
November 19, 2009
Our offices handles every type of drug case, from relatively minor prosecutions for possession of marijuana, to defending those who are charged will selling “hard drugs.” There is a big difference between the kind of sentences imposed for what are called hard drugs, such as cocaine and heroin, and soft drugs such as marijuana. While selling marijuana is prosecuted relatively tepidly in New York, Brooklyn and Queens courts, in Nassau and Suffolk County counties, they generally prosecute even marijuana possession quite aggressively.
We represent people who are charged with the possession and/or sale of cocaine and heroin, which used to be subject to very severe penalties under the “Rockefeller Drug Laws,” which were in effect in New York for decades. Recent changes in the law have significantly reduced these penalties.
The unauthorized possession or sale of prescription bills can also subject a person to serious criminal charges. Some of these pharmaceuticals are manufactured in illegal laboratories.
What are some of the pills that you’ve seen?
We have defended clients who were charged with illegally obtaining such drugs as Vicodin, Oxycontin and Percocet.
How are the crimes of sale and possession defined in New York?
Possession is not penalized as severely as crimes relating to the sale of illegal narcotics. It is possible to inadvertently commit the crime of selling drugs by buying some drugs and then giving or selling a small amount to a friend. Although the person may not intend to become a “drug dealer,” he is inadvertently committing a much more serious offense than merely possessing drugs.
The system works in the following way: If the authorities arrest you for possessing a narcotics of a certain weight, you would often want to make a plea deal with the prosecutor. It is sometimes necessary for you to cooperate with the police or the district attorney’s office by giving them information to assist in the prosecution of someone on a higher level in the drug dealing chain. This is what happens to many individuals on the lowest level of the drug dealing pyramid structure who are caught by narcotics agents, or “narcs,” as they sell drugs on the street.
As indicated earlier in this post, New York City, Brooklyn and Queens counties treat drug crimes differently than they do in Nassau and Suffolk counties. In the latter, these cases are more vigorously prosecuted in the Long Island suburbs than they are in the city.
Picture courtesy of hiptics.com
August 18, 2009
Robert Harper, of the NY Trusts & Estates Litigation blog, recently wrote about the law as it relates to the right to decide how human remains are disposed of in New York. The article quoted NY Public Health Law § 4201(2)(a), which identifies an order of priority of who has the right to direct how a deceased person’s remains are disposed of. An individual may execute a document specifying whom she wishes to decide issues related to how to dispose of her body, but if no such written instrument exists, then the individuals listed in § 4201 determine the order of priority.
Other important issues exist regarding how a loved one’s body is treated after death as well regarding whether a body is autopsied or cremated.
With regard to the decision whether bury or cremate an individual’s body, there is an order of priority for how that decision is made, as noted above, and there is an exception to the rule.
1. If the decedent left a document specifying how her remains should be disposed of (i.e. burial versus cremation), then that document controls. NY Public Health Law § 4201(2)(a)
2. If no such document existed, but the decedent’s actions or expressed wishes dictated how her body should be handled after death, then those wishes control, even over the objections of family members. Application of Hillard, 91 N.Y.S. 2d 547, 549 (N.Y. Sup. Ct. 1944).
3. If the decedent had no discernable wishes as to how her body should be disposed of, then the statutory order of priority determines which relatives decide how the decedent’s body is disposed of. NY Public Health Law § 4201(2)(a)
However, there is an exception to the order of priority listed in the § 4201. For instance, a surviving spouse and children are high in the order of priority to decide how a body is disposed of us a surviving spouse, but where there is evidence that the decedent was estranged from his or her spouse or children, the courts look beyond those individuals to decide how a decedent’s body should be disposed of. In re Solomon, 766 N.Y.S. 2d 294, 295 (N.Y. Sup. Ct. 2003).
In one relatively recent Nassau County Supreme Court case, a deceased person’s estranged wife and daughter were planning to have him cremated, and his body was already in the custody of a crematorium. Based on testimony that the decedent led a somewhat observant Jewish life, and based on the expert testimony of Rabbi Moshe Weinberger that orthodox Jews consider cremation unacceptable, the court held that evidence of the decedent’s desire to have a traditional Jewish burial overcame the wishes of the surviving spouse and daughter, the provisions of § 4201 notwithstanding. Id.
The Performance of an Autopsy
NY Public Health Law § 4210 gives the medical examiner the power or right to perform an autopsies on, “… the bodies of persons dying from… casualty, … suddenly when in apparent health, … or in any suspicious or unusual manner.” But § 4210-c(1) states that absent some compelling public policy need, “no dissection or autopsy shall be performed over the objection of a surviving relative … that such procedure is contrary to the religious belief of the decedent, or, if there is reason to believe that a dissection or autopsy is contrary to the decedent’s religious beliefs.”
Absent one of the circumstances specified in § 4210, the medical examiner may not do an autopsy on a body without notice to the family of the deceased. Dick v. City of New York, 2002 WL 31844745, *3 (N.Y. Sup. Ct. Oct. 30, 2002). However, “the burden is upon a decedent’s next of kin to convey a religious objection to the medical examiner’s office” were the death occurred in some unusual manner, or upon notice, absent some unusual or suspicious circumstances surrounding the death.” Id.
If an autopsy is performed despite notice that there are religious objections, the hospital may be held liable for civil damages. In Rotholtz v. City of New York, 582 N.Y.S. 2d 366, 367 (N.Y. Sup. Ct. 1992), the decedent’s brother informed a doctor at Lenox Hill Hospital that an autopsy should not be performed on his sister, but the hospital failed to convey this message when it turned the body over to the medical examiner, who performed an autopsy. The court there held that the hospital was responsible because when it failed to inform the medical examiner of the family’s religious objection to the performance of an autopsy, it thereby “caused or procured” the unauthorized autopsy. Id. at 670.
The Appellate Division reinstated a jury’s decision to award a surviving family $75,000 compensatory damages and $1,350,000 in punitive damages when an employee at Riverside Chapels caused the medical examiner’s office to perform an autopsy even though the family had told Riverside employees that they were orthodox Jews and that no autopsy should be performed. Liberman v. Riverside Memorial Chapel, Inc., 650 N.Y.S. 2d 194, 197-99 (N.Y. App. Div. 1996).
The safest way to ensure that one’s wishes regarding how his or her remains are disposed of after death will be honored is by executing a Will which makes those wishes clear. The named Executor will be able to ensure that the appropriate people know of your wishes. And as for family members, even though it is a very difficult time after the loss of a loved one, miscommunications can be avoided more easily if everyone they speak to at the hospital, the nursing home, and the medical examiner’s office (if they are involved) are made aware of your wishes with regard to how the deceased’s body should be treated.
And of course, if you need assistance with any estate planning documents like Living Wills, Powers of Attorney, Wills, or Trusts, our office has extensive experience with these documents. Feel free to contact our office at any time for assistance.
Picture courtesy of the Hoven Funeral Home.
Update 8/26/09: Indiana Creates Funeral Planning Directive
August 13, 2009
In addition to his wide-ranging experience in most major areas of law in general, and his extensive experience in Matrimonial and Family law in particular, Mr. Schlissel has a particular expertise representing fathers in child custody matters.
Contact us for more information.