Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

Posts Tagged family court

A Little Boy Named Adolf Hitler…

Nov 22

Posted by Charles Messina in Politics, Uncategorized | 5 Comments

So… a couple braniacs in New Jersey named their kid Adolf Hitler.
Story here.

And then they had a couple more kids, who they named after other nazis.

All the kids have been taken from them and are now in foster care.

 

Regardless of the distaste that the vast majority of human beings hold for Adolf Hitler and nazis in general, should the government be allowed to tell us what we may or may not name our children?

Sure those kids are in for a life of prejudice, beatings on the playground, and being laughed at.  But many people find other names equally disdainful.

Several religions prohibit certain names for children as being offensive (Muslims prohibit the name “Allah” or anything that is too similar; several Christian sects prohibit the name “Jesus” being given to an infant, but we don’t see thousands of Hispanic-Americans  who name their kids Jesus being hauled away).  So what exactly makes one name more offensive than another?  What makes a name so bad, that the government will take your child away if you bestow it upon your child?

 

Is it genocide?  If so, we need to lock up everyone of Slavic persuasion who has named their child “Vlad.”  After all, Vlad the Impaler killed about 40,000 (give or take a few thousand) by publicly impaling them.
Why not take the children of all the Italians who name their kid Benito (Mussolini killed about 300,000)
Or the Russians who name their kids Josef (Stalin killed about 23million people)?
Or Chinese people who name their child Mao (Mao Zedong killed between 49 and 78 million people depending on the source)?
Charles Taylor killed 220,000 in the Liberian genocide between 1989 and 1996. Should my parents be faced with government reprisals for naming me Charles?

The names of some of the worst genocide perpetrators in history are not off limits. Why should Adolf Hitler be?

Now before you go thinking I’m some kind of nazi sympathizer, or Hitler lover, let me set that record straight. I am neither.
But I do believe that everyone in America should be free to name their kid whatever they want, free from government interference.

If you want to name your new twins Bevis & Butthead, more power to ya! Want to name your baby boy Satan? Have at it. How about naming your kid “Big-Dumb-Jerk-Baby?” Fine with me. How about naming your new-born daughter “Slut?” Well, if you think it’s appropriate, go to town.

The fact that I don’t like the name you choose for your kid should not be open to public debate or governmental inquiry.
If you want to name your child something that you like, but may subject him or her to ridicule and derision by the masses, that’s your decision. It might be a bad one, and your kids will probably not thank you for it, but it is yours none the less.

Johnny Cash wrote a whole song about the topic! A Boy Named Sue.

One of the most cherished and sacrosanct concepts in American law, enshrined in our Constitution, is the right to free speech. I think that Evelyn Beatrice Hall put it best when she wrote: “I disapprove of what you say, but I will defend to the death your right to say it.”

What do you think?

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Unable to pay child support, poor parents jailed – US news – Crime & courts – msnbc.com

Nov 16

Posted by Charles Messina in child support, family court, Uncategorized | 3 Comments

Unable to pay child support, poor parents jailed – US news – Crime & courts – msnbc.com.

In New York State, parents have an obligation to support their children. Once a child support Order has been made, the obligation becomes something less than an altruistic ideal, and more of a monthly bill. Sometimes people fall behind in child support payments. This is termed by our legal system as falling into “arrears.” Arrearages are a bad thing, from everyone’s perspective. From the child’s point of view, they may not have enough to eat. From the custodial parent’s point of view, they may not have enough to pay the heating bill. But from the paying parent’s point of view, he or she could be facing jail time.

In New York State, once arrearages accrue (meaning they add up), the parent who is to receive child support may file a petition in Family Court. If the paying parent is found to have WILLFULLY failed to pay the support as it was ordered, that parent can be subject to jail time.

A surprising percentage of people jailed are able to miraculously make money appear, seemingly from thin air, where they previously maintained none was to be had. On the other hand, some sit in jail. The moral of the story is if you cannot pay your child support, don’t just stop paying and let the arrearages grow. For the love of Pete… DO NOT make a side deal with the recipient parent that you don’t have to pay for some period of time as these arrangements are almost never honored by the Courts (even when they are in writing, on a cocktail napkin!) and arrearages will continue growing. Speak to an attorney, consider filing a petition to modify your support obligation. Do something. Because once the arearages accrue, they generally don’t go away.

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In Opposition To Cafe Courts

Feb 28

Posted by Charles Messina in Uncategorized | 3 Comments

For several years now, “Cafe” courts have been all the rage.  What’s a “Cafe” court?  It is a court specifically geared to a specific subset of persons who have been identified (by someone… anyone apparently) as requiring special services and dispensations that ordinary persons don’t get.  For instance, we have: Family Court; Integrated Domestic Violence Court (a/k/a IDV); Family Treatment Court; Juvenile Treatment Court; Veterans Court; Drug Court; Mental Health and Sex Offense Courts; and even Gambling Court.

I’m sorry I am not ready to jump on the politically correct band wagon, but my opinion is that these cafe courts are a farce.
What happened to equal justice under the law? Why is a veteran entitled to more lenient treatment than the guy who has volunteered at the City Mission every weekend for the past 25 years? Why does a cocaine addict who broke into a house and stole a TV get a slap on the wrist and referral to treatment instead of a trial and jail time? Why should a compulsive gambler who has flushed his rent payment down the one-armed-bandit toilet get special treatment when he steals $50 from the office petty-cash to give it one more pull?

Courts were never meant to “treat” people’s problems and should not endeavor to do so. Treatment is the domain of health care professionals, not judges and lawyers.

Don’t get me wrong, I think there is merit to Family Court and its less arduous procedures for solving many of the issues that arise in custody, visitation, child support, etc., situations. To do so in Supreme Court would be exceedingly expensive and time consuming. Kudos to Family Court.

However, and I am going to take some flak for this, I can find no reasonable justification for the existence of IDV Court. Actually, I would argue that there are constitutional issues raised by the existence of IDV Court which can severely prejudice people and deny them a fair trial. Take for instance the guy who is unfairly accused of harassing his wife in the course of a divorce (another politically incorrect statement, but it is usually the guy on the wrong end of IDV Court, so I’ll go with it). He gets a trial on the criminal matter before the IDV court hears the divorce. Maybe he is acquitted of the criminal charges. However, the IDV judge has heard all these horrible things about him, that don’t rise to the level required for the criminal conviction. But that judge heard all the dirt, nonetheless. Maybe a lot of that dirt would have been inadmissible in the divorce hearing. How exactly do you unring that bell? The judge heard all the bad stuff and acquitted the guy, but now the judge has all that bad stuff in his or her head while making the decisions in the divorce which occurs thereafter. I ask you… is that fair and unprejudiced? How would YOU like to be the guy on the receiving end of that decision? I wouldn’t want to be that guy! No matter how much the judge recites the sacred mantra “I am a Judge, I can disregard what I heard and make an impartial decision.” Thank you judge, but you are also HUMAN!

Shall I go on? Lets talk about Mental Health Court for just a second. I think that by definition, if someone is so mentally screwed up that they need the services of Mental Health Court, they need the services of a Psychiatrist on an urgent basis. The person should not just get a free pass and referral for services and a follow-up by the court every month. Stabilize that person, and send him or her to trial or let them cut a deal, the way everyone else has to do it. If their defense is mental illness or incapacity, they can deal with that like Muzzamiel Hassan did and have a trial… (have fun in the can, Mo! I hope you make lots of new friends!).

Drug Court: It’s a crime. Period. Don’t do it and don’t whine when you get caught and have to face the music. If that doesn’t work for you, go get some treatment or watch a few episodes of Intervention. When they take the drug laws off the books, feel free to snort that coke to your heart’s content (I’ll still take a pass on it).

We have a court system set up and it has provided answers to tough questions for several hundred years now. I honestly believe that the reason many of the cafe courts have been set up is so that politicians seeking election can point to them and say “Look what I did! Isn’t it great? Elect me!” I do not believe that one subset of people should be treated any differently under our laws than any others.

My kid goes to Tae Kwon Do a couple times a week. They start out her classes with the Pledge of Allegiance. I hadn’t said the Pledge since I was in high school before she started with those classes. The Pledge is simple, elegant, and ends with “..liberty and JUSTICE FOR ALL.” Not for some. I like the Pledge, and my kid’s Tae Kwon Do Instructor for having them recite it.

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5 Considerations Before Going To Family Court

Nov 14

Posted by Charles Messina in family court, The 5's | 8 Comments

In New York State, we have Family Court.  Family Court is a Court of “limited jurisdiction.”  This means that Family Court can only hear matters that are specifically set forth by statute.  The statutes that tell us what matters Family Court may hear are the Family Court Act (FCA), the New York State Constitution (yes, there IS a state constitution) and to some extent the Domestic Relations Law (DRL).  While Family Court is generally touted as “user friendly” and informal, it can be a scary place, where children are taken from parents, people defend against alleged family offenses, and Temporary Orders of Protection are regularly issued without affording the Respondent the ability to dispute the allegations upon which it is based.

Before going to Family Court, as either a Petitioner (the person bringing a Petition) or the Respondent (the person responding to a Petition), there are some issues one must consider very carefully first:

1.  Is Family Court the proper place for this Petition?  Remember, as a court of limited jurisdiction, the Family Court can only hear certain enumerated issues.  Is your issue one of them?  If not, your Petition will likely be dismissed at the first appearance.  For instance, Family Court cannot hear an action for divorce… only the Supreme Court has jurisdiction for that.  Family Court cannot issue a Qualified Domestic Relations Order (QDRO) to divide a pension.  Be sure the Court has the authority to grant the relief you are seeking before you file the Petition.  Under certain circumstances, Supreme Court might be a better venue for a given matter.

2.  Who do I want to hear this matter?  While it may seem like a silly question, it is a very basic tactical question that any attorney will carefully consider before filing any Petition.  In the Family Court, generally Support Magistrates hear all support related Petitions.  Support Magistrates are not judges, are not elected, and have extremely busy calendars.  Many of them are extremely good at what they do, but the occasional Support Magistrate may not be a good choice to hear a given matter.  On the other hand, Family Court Judges generally hear matters involving custody and visitation.  Do you know who the Support Magistrates and Family Court judges are that may be assigned to your case?  Do you know who the Supreme Court Justices are that might be assigned to your case if filed in Supreme Court?  before you file a Petition, you should research both of these issues.  Call the clerk’s office and ask which Judges or Magistrates your case may be assigned to, they will let you know, with a little cajoling.  Research those persons who are on the list of possibilities.  How have they performed in the past?  Have your friends or relatives been before any of them?  Assess whether the Family Court or Supreme Court possible assignees might be more sympathetic to your case.

3.  Manners.  you need to be on your best behavior, before, during & after your Family Court appearance.  Dress appropriately, it goes a long way.  Men – button down shirt, neck-tie, neat and clean pants and shoes.  Women- neat and clean, no jeans, no stiletto heels, CONSERVATIVE, no abdomen showing, no micro-mini skirts, easy on the cleavage (though it pains me to say that).  All- ditch the piercings, cover the tattoos, speak when spoken too, do not yell, scream, curse, talk over the Judge, or end a sentence in the courtroom with anything other than “yes/no your honor” or “yes/no sir/ma’am.”  Trust me, these simple manners will go a long way with the Court.  You might be asking yourself :Hey, he said best behavior before and after the appearance, why can’t I flip the Judge off after I leave the courtroom?”  Well, that is because of technology.  There are cameras at all the entrences, exits, in the hallways, big brother has your number.  There is a team of security personel watching your every move, and they watch CAREFULLY!  if you’re planning on putting out a dube in the ashcan next to the door, you’ll probably be arrested on your way out.  And make no mistake, there may not be official channels, but you will be the talk of the Courthouse if you make a scene for any reason and you Judge will likely hear about it.

4.  Should I appear and answer a Petition my ex-wife/girlfriend/brother0in-law/husband brought against me?  Sounds like another trick question, but it is not.  You may not always want to appear to answer a Petition.  For instance, certain jurisdictional defects might dictate that you not appear, or only put in a special appearance to contest the jurisdiction of the Court.  If you appear and don’t raise the objection, you may very well waive the issue.  Be very careful about this, only a licensed attorney should make a decision to not appear or to make a special appearance to challenge jurisdiction.  The question is simply to technical for the average non-lawyer to answer.  When in doubt, get an attorney.

5.  Should I get an attorney?  This is an easy one… YES!  You should get an attorney.  if you can afford an attorney, retaining one to represent you is your safest option.  Attorneys know the rules, the system, and are familiar with all the players in the system.  They can answer your legal questions, explain your options, and carry out your instructions to give you the best chance of coming out of this in reasonably good shape.  If you cannot afford an attorney, call your local Bar Association and ask if they can refer you to either the local assigned counsel program, volunteer lawyer program, or an attorney who might represent you for free.  Contrary to popular belief, attorneys do a tremendous amount of free legal work.  If the Bar Association can’t help you, ask the Family Court for a referral to the assigned counsel program when and if you appear.  The Court is always happy to make the referral, though you may or may not qualify.

In short, the worst thing to do is ignore the matter if you are summoned to appear in Family Court.  Retain an attorney if you have the means, seek help from the system if you do not.  Family Court can be a scary place, but with some research ahead of time, and some common sense, you can get through it.  And one last tidbit…  bring a book!  Family Court is always a slow process and you just might make it through that novel you started two years ago and couldn’t find time to finish.

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Intro to New York Courts

Oct 9

Posted by Charles Messina in Intro to, Uncategorized | No Comments

This is my first foray into the world of blogging!  Go me!

I’m going to try to address this blog toward developments, issues, and oddities of matrimonial and family law in the State of New York.  It’s an ever changing field, sometimes on a daily basis.  Now you may be asking, “who the heck are you and why are you blogging about New York matrimonial and family law… and what exactly is matrimonial and family law?”  Those are good questions!

I am Chuck Messina, father of 2, husband of 1, mediocre hockey player, and attorney extraordinaire (licensed in New York).  I live in Buffalo New York, and I have had the privilege of working for some of the finest matrimonial and family law practitioners around.  I enjoy my chosen field, though it is not for those with a weak stomach, and I genuinely enjoy talking about it.

Matrimonial law is, generally speaking, the law of divorce, and all that goes with it.  This field encompasses grounds for divorce, equitable distribution of property (and debts, to the chagrin of many), custody of children, visitation issues, child support, spousal maintenance and all ancillary matters.

Family law kind of goes hand in hand with matrimonial law.  Family law runs the gamut from paternity, custody and visitation, to family offenses, PINS (Persons In Need of Supervision) Petitions right through adoption, child support and guardianship.

In New York, only the Supreme Court (our trial level court) has jurisdiction to hear a divorce proceeding.  The Supreme Court is a court of nearly unlimited jurisdiction and can hear controversies in regard to any matrimonial or family law issue.

On the other hand, the Family Court is a court of limited jurisdiction.  It may only hear matters that are specifically set forth in the New York State Constitution, or a relevant statute, such as the Family Court Act.  Family Court may not, for instance, hear an action for divorce.

With regard to certain matters, the Supreme Court and the Family court have concurrent jurisdiction.  This means that both courts are able to hear matters, such as custody of a child, or child support matters.

I think this is a good first step in my blogging career, and I hope it provides a little insight into the court system in New York State for those lacking familiarity with it.

Next up, the New York Domestic Relations Law (DRL) and the Family Court Act (FCA), recent changes and new requirements.

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