Redefining the Family Offense of Disorderly Conduct

by Mallory McGee

CCC memo

In Cassie v. Cassie, a recent decision from the Second Department of the Supreme Court Appellate Division, the Court decided that the petitioner did not meet the required burden to establish the family offense of disorderly conduct, and directed that an order of protection be reversed. Consistent with the First and Fourth Departments, the Court held that to establish the family offense of disorderly conduct, Family Court Act §812 (1), the petitioner is required to show that the respondent “intended to cause, or recklessly created the risk of, causing public inconvenience, or harm,” in accordance with Penal Law §240.20.  The Courts’ rulings run counter to the legislative history and the intent behind Family Court Act §812 and have the potential to adversely affect future domestic violence victims.

The facts of this case, like most domestic relations matters, are in dispute. There was an argument between the petitioner and the respondent followed by a somewhat violent altercation near the stairwell of their home while their two daughters were upstairs and did not witness anything. The Court found that this incident did not cause any public ramifications or create the risk thereof. However, the inherent nature of family offenses requires a more personal, case-by-case analysis.

I agree with the Court in saying that the family offense of disorderly conduct can be unintentionally merged with the family offense of harassment if courts are not careful. However, I do not think that the solution to this issue is forcing proof of an intention to cause public ramifications, which will almost never be possible because the conduct in family offenses is most often intended for a specific party, not the public.… <Read More>


NYLS Domestic Violence Panel: The Intersection Between Domestic Violence and Family Law

By Emily de la Vega and Gabriel Hisugan

The Domestic Violence Project hosted its annual domestic violence panel on October 23, 2013, during Domestic Violence Awareness Month. The panel was intended to give first year and continuing law students a first-hand look inside the various issues surrounding domestic violence. The panel included four distinguished members from the family law community: Referee Emily Martinez, a Custody, Visitation, and Order of Protection Referee from Brooklyn Family Court; Elizabeth Dank, the Program Director of the Staten Island Domestic Violence Response Team (DVRT) with the Mayor’s Office to Combat Domestic Violence; Shani Adess, a staff attorney with the New York Legal Assistance Group; and Cynthia Domingo-Foraste, the Director of the Domestic Violence Law Project at Safe Horizon. The panel was designed to include members of both the legal and social services communities in order to shed light on the crucial role each field plays in addressing the issue of domestic violence.

The panel responded to and discussed an interactive fact pattern designed to illustrate a situation of domestic violence. Throughout the discussion of the fact pattern, each member of the panel had the opportunity to explain her organization’s role in offering help to a victim. The fact pattern touched on many issues including the effects of unemployment, the lack of resources available to victims, and children being present during the violence. As the discussion developed, new facts were introduced in order to demonstrate the complexity of issues often faced by victims.… <Read More>


Keeping Kids in School and Out of Court: New York City Regional Leadership Summit on School-Justice Partnerships

By Michael Cabasso, Susan Imam and Emily de la Vega

On October 18, 2013 the New York City School-Justice Partnership Task Force held a Summit at New York Law School to discuss the issue of keeping kids in school and out of court.

Total-Suspensions-Line-Graph

Background:

The Summit was the culmination of four years of work in New York City led by former Chief Judge Judith S. Kaye along with Kathleen DeCataldo, the Executive Director of the New York State Permanent Judicial Commission on Justice for Children, and Advocates for Children of New York.  The Task Force is comprised of distinguished community leaders, judges, New York City officials, educators, prosecutors, defense counsel, advocates and researchers who came together in an effort to identify, address, and find solutions for the wide array of problems surrounding school safety and school discipline.  The Summit was further supported by the New York State Division of Criminal Justice Services, with additional funding from The Atlantic Philanthropies and the New York State Juvenile Justice Advisory Group.

This initiative focuses on schools that frequently use suspensions to discipline students who commit offenses while at school, or where students are the most frequently arrested or given a summons to appear in court. Suspensions often result from altercations, physically aggressive behavior, insubordination, and horseplay. Students are most commonly arrested for misdemeanors, with some students arrested for obstructing governmental administration or resisting arrest. The problem with suspensions and arrests is that they can push students further away from receiving an education.  Furthermore, there have been disproportionate numbers of students of color or with disabilities making up a large number of suspensions and arrests.  … <Read More>


Surrogacy in New York: Not Simple

With the ratings success of the new NBC television sitcom, The New Normal, it might be worth reviewing surrogacy laws in New York to determine whether the process is as simple and quick as the show makes it seem.In short, the show is about Bryan (Andrew Rannells) and David (Justin Bartha), who are a gay California couple hoping to start a family through a surrogate named Goldie (Georgia King). Now, there are two common types of surrogacy: traditional and gestational. Traditional surrogacy involves insemination of the surrogate’s egg with sperm, resulting in the surrogate being the biological mother. Gestational surrogacy involves implantation of an embryo, formed from a donor sperm and a donor egg, into the surrogate, resulting in the surrogate being biologically unrelated to the baby.

New York makes surrogacy difficult because New York’s Domestic Relations Law § 122 states that surrogacy agreements are against public policy. Specifically, the DRL states, “Surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.” It also prohibits people from paying or accepting money in relation to the agreement, except for medical fees and hospital expenses. The state can monetarily penalize anyone who pays a “surrogacy fee” or accepts one. This means that if the intended parents and the surrogate mother are from New York, the surrogate does not have to give up the baby despite having signed an agreement. Thus, the intended parents may only work with a surrogate who resides in a state that allows surrogacy and should draft all agreements in the state where the surrogate lives.… <Read More>


Give Me Back My Kidney: A Strange Divorce Case in New York

 

In 2001, Long Island surgeon, Dr. Richard Batista, donated his kidney to his wife, Dawnell, in order to save her life.  Although the surgery was a success, the same cannot be said for the marriage which ended when Dawnell filed for divorce in 2005 after 15 years. Batista claims that his wife began cheating on him eighteen to twenty-four months after she received the transplant.

Instead of fighting over the million-dollar home they shared, Batista is asking that either his kidney be returned or that he be compensated for it. He is seeking $1.5 million in damages. Batista claims that his demand stems from frustration regarding the ongoing negotiation process with his soon to be ex-wife. He decided to go public with the details of his divorce as a last resort after being prevented from seeing his three children for months at a time.

Matrimonial attorneys were quick to voice legal opinions that Batista’s claim for damages would fail. In the Huffington Post article “Divorcing Man Wants Kidney Back After Wife Cheats,” a Manhattan attorney, Susan Moss, argues that no judge will entertain this demand because judges are unwilling to place a value on such assets.  She cites a similar case in which a husband wanted to be repaid for the cost of breast implants but was denied compensation.

Moss’s prediction was correct. In February, a Long Island Judge rejected Batista’s request on the grounds that it would violate public policy. The Judge’s Referee, Jeffrey Grob, wrote, in a ten page ruling, that entertaining Batista’s claim would make the statement that human organs are commodities.… <Read More>