by nydfl

Careless Custody

November 30, 2014 in Uncategorized by nydfl

New York news headlines for the last week have highlighted the tragic case of Thaiya Spruill-Smith, a 2-year-old little girl on life support waiting for the court to decide the outcome of a dispute between Thaiya’s mother and father about whether the child’s organs should be donated.

This emotional case is one of many that rivet the practice of family law in New York State. Thaiya was declared brain-dead and rests on life support due to an alleged assault at the hands of her stepfather, David Adams. Adams is currently charged with assault, yet that charge too is under review and me be upgraded to murder given his involvement in violently shaking Thaiya when she would not stop crying—ultimately leading to her life-altering brain injuries.

The battle that wages on in the courts today is focused exclusively on Thaiya’s organs. The child’s biological father, Terrell Smith, wishes his daughter to be buried with her organs. In his words, “She was born with them and I want her to be laid to rest with them.”

In opposition, Thaiya’s mother, Teoka Spruill, has requested that her daughter’s organs be donated.

The tragedy surrounding this situation makes the legal precedents more challenging to define as Thaiya’s biological father previously filed reports of potential abuse with the city which were investigated. Further, Thaiya was temporarily removed from her mother’s home, but according to Thaiya’s father, was returned one week later.

Currently, Thaiya’s body is being kept alive by machines until there is a resolution concerning her organs. Additionally, a decision will also allow the charges against David Adams to be upgraded to murder—yet that decision cannot be made until the medical examiner’s office can rule the child’s death as a homicide.

Legally, when it comes to organ donation of a minor, consensus from both parents is required. Given that Thaiya’s parents sit in direct opposition, the court must decide the final outcome.  What would you do if this was your case to decide?

Update: On 11/19/2014, 2-year-old Thaiya Spruill-Smith passed away at Brookdale Hospital shortly after 7 a.m.  The Court ruled in favor of the biological father and the child was removed from life support and no organs were donated.

by nydfl

Is it OK if your husband is your mother’s half-brother?

November 7, 2014 in Uncategorized by nydfl

The state Court of Appeals recently ruled that it is.  The recent decision in  Nguyen v. Holder centered on the validity of a marriage of a half-uncle to his half-niece under New York Domestic Relations Law §5(3).  According to the Court of Appeals, this type of relationship was not defined as incestuous under the statute.  The judges elaborated on this decision through concurring opinions.

Ambiguity in the statute was something that was addressed in the concurring opinions.  The Legislature specified, in the statute, that a marriage was void between “[a] brother and sister of either the whole or the half blood.”  (Emphasis added)  However, in describing marriages between uncles and nieces or aunts and nephews as void, it did not include the same half-blood specification.  Judge Smith described this ambiguity in his concurring opinion and stated that, since the Legislature could have added this clarification if it intended to bar all half-blood relationships, the provision must be read as permitting them.

Judge Graffeo’s concurring opinion focused on the role of the Legislature.  He stated that if the Legislature wished to prohibit half-blood marriages in the future, it could revisit and revise the statute.  There were other concerns that the court was not in the position to address, such as familial structure and the true genetic risk of such a marriage, which would be better dealt with by the Legislature itself.  However, some of the judges did express the opinion that marriage between a half-uncle and half-niece was comparable to marriage between first-cousins, which is legal in New York.

You can read a more detailed New York Law Journal article on the subject here: http://www.newyorklawjournal.com/this-weeks-news/id=1202675040046/Court-Sees-No-Bar-to-HalfUncle-HalfNiece-Marriages?mcode=1202615038803&curindex=2&slreturn=20141004130704

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Court Rules that Attorneys and Parents Can Now Access Underlying Materials in Child Custody Case Forensic Reports

November 5, 2014 in Uncategorized by nydfl

Attorneys are applauding a recent decision out of Nassau County Supreme Court allowing parties to access to the entire file of a court-appointed forensic evaluator in a child custody dispute.  On October 17, Justice Goodstein ordered in J F.D. v. J D. that, from now on, both attorneys and their clients would be permitted to read an evaluator’s report, as well as the raw materials created and maintained throughout the evaluation process.

In the past, New York courts generally have not permitted discovery of the raw materials in an evaluator’s file pre-trial, unless the parties could show “special circumstances” such as evaluator bias or some other deficiency in the report.  Assemblywoman Helene Weinstein recently proposed a bill, which did not pass, aimed at rectifying what she saw as limitations on due process by amending Domestic Relations Law §§ 70 and 240 to allow parties discovery of an evaluator’s entire file pursuant to any additional limitations set by the court.  Shejustified this proposal by pointing to the fact that “[s]ince theparents are most familiar with the facts of their lives, they are best positioned to identify factual errors …” as well as noting that the parents’ interest in the custody and care of their children is a well-recognized fundamental liberty interest.

In his decision, Justice Goodstein pointed out his agreement with the propose bill and declared his belief that “special circumstances” were unnecessary to order the release of an evaluator’s entire file.  He wrote that without the ability to review an evaluator’s raw materials, he did not understand how parties would be able to adequately identify bias or deficiencies in the evaluator’s report or properly bring these issues to the attention of the court.  Failure to disclose these materials, he wrote, “could be detrimeiitarto llie-besf —  – interests of the child and this Court’s ultimate decision.”

Justice Goodstein ordered that the parties themselves would be permitted to review the report and its raw materials in the presence of their attorneys and would be permitted to take notes, but would not be allowed to possess copies or photos of the report and raw materials.  He determined that by allowing parties to review the entire evaluator file, they would be able to better assist their attorneys in preparing for cross-examination.

A more detailed summary of this ruling can be read in the New York Law Journal here: http://www.newyorklawjournal.com/this-weeks-news/id= 1202674624071/Judge-Vows­ to-Grant-Parties-Access-to-F orensic-Reports?mcode= 1202615038803&curindex=11