September 2012 Archives

Electronically-In-Touch

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September 2012

Dear Young Lawyers Section Members:

Welcome to the latest edition of Electronically-In-Touch, the e-publication of the NYSBA Young Lawyers Section. The current issue includes a Message from our Section Chair, Michael L. Fox, Esq., information about our Fall Meeting from Program Chair, Lisa R. Schoenfeld, Esq. and events of interest. After that we have an article on Corporations by Ian Scott, Esq. a Family Law article by Joseph Nivins, Esq., and an article on Deferred Action for Childhood Arrivals by Mikhail Izrailez, Esq. We are always looking for submissions so please keep your articles coming to Electronically-In-Touch.

The Officers of YLS and the Editors of Electronically-In-Touch also wish to make clear that the thoughts and opinions expressed in the articles that follow are those of the respective authors alone, and do not represent the opinions of the NYSBA Young Lawyers Section, or its Officers or Executive Committee.

Erin K. Flynn, Esq.
Editor in Chief, Electronically-In-Touch
Erin.K.Flynn@gmail.com

Brian M. Doyle, Esq.
Managing Editor, Electronically-In-Touch
doylebm@gmail.com

Chair's Message

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Greetings! As the busy fall and winter seasons begin for the Young Lawyers Section, we hope that you enjoy this latest edition of YLS' Electronically-In-Touch - one of our two publications. We have a number of items that we believe you will find interesting and informative. Don't forget that as you are reading this message, YLS' Fall Program is fast approaching on Thursday and Friday, October 18-19. The program will be in Albany, and will include a tour of the N.Y.S. Capitol, our YLS Executive Committee meeting, a festive and social dinner, and a full-day CLE program. It's not too late for you to register, so if you are interested please see the information at the following link: www.nysba.org.YLSFall2012

Our Section is continuing to grow, approaching 4,000 members as we still strive to reach 5,000 members during this term as one of my Chair's initiatives. If you have friends or relatives who are not YLS members but who qualify to join our Section, please encourage them to join! There is tremendous mutual benefit for them and the Section.

Finally, thank you again for being a member of the Young Lawyers Section. Over the next three months we will hold not only our Fall Program, but we will also have our Annual Meeting programs, elect the Section's Officers and Executive Committee members for the June 2013-June 2014 term, send out materials for nominations for the annual Outstanding Young Lawyer Award, distribute materials to high school students for the inaugural YLS Civics Prize, and send out materials to begin planning and registration for the June 2013 U.S. Supreme Court Admissions Program and the March 2013 YLS Trial Academy at Cornell Law School. There is much to do, and much to be involved with. I look forward to working with everyone!

Best,
Michael

Michael L. Fox, Esq.
Section Chair
Jacobowitz & Gubits, LLP

Fall Meeting

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Young Lawyers Section Fall Meeting
Thursday-Friday, October 18-19, 2012
NYSBA Bar Center
1 Elk Street, Albany, NY

The Young Lawyers Section's Fall Meeting is coming up on October 18ththrough October 19th. The meeting is a two-day event. It starts on Thursday, October 18th with a tour of the New York State Capitol followed by the Young Lawyers Section Executive Committee Meeting and a dinner at Jack's Oyster House. All attendees and guests are welcome to join us for each of these events. Dinner will provide an opportunity to meet the Section leaders and program faculty at a renowned Albany restaurant.

The second day of the meeting, which will be held on Friday, October 19th, is an all day CLE program where you will be provided with the rare opportunity to receive 3 Ethics credits in one day! The program, which also includes 5 Skills credits, will provide lectures on a variety of topics, including how to run a law firm, jury selection, e-discovery, depositions and arbitration/mediation. Breakfast and lunch will be provided to all attendees.

We hope that you will be able to join us for this exciting meeting! Feel free to contact me or email me with any questions. Hope to see you all there. Please click here for the registration materials and the program brochure, which includes further details on the CLE program and speakers.

Lisa R. Schoenfeld, Esq.
Program Chair
lschoenfeld@soklaw.com


Events of Interest to Young Lawyers

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How to Find A Non-Profit Job
The New York State Bar Association Committee on Lawyers in Transition is continuing its series of free, live Career Development webcasts to help lawyers better manage their careers during this tough economy. The upcoming October 17th program will feature panelists sharing tips on how to find positions in non-profit organizations.

Wednesday October 17, 2012
Edwards Wildman Palmer LLP, 750 Lexington Avenue, New York, NY
12:00 p.m. - 2:00 p.m.
Free Live Program and Free Webcast for NYSBA member. Pre-registration is required. Registers online now.

Criminal Justice Section Fall CLE Program "Forensics & the Law"

The Criminal Justice Section of the New York State Bar Association, Presents the Annual Fall Forensics Continuing Legal Education Program "Forensics & the Law". Come to review several hot topics in forensic science and enjoy a complimentary networking reception that will immediately follow the program. This program offers 8 CLE credits. This is NOT a transitional program and is NOT suitable for MCLE credit for newly-admitted attorneys.

The Criminal Justice Section encourages newly admitted attorneys to attend the event and the networking reception and therefore has put in place newly admitted attorney pricing. Newly admitted attorneys who register at the discounted price will not receive CLE credits.

Friday, October 12, 2012
8:30am - 5:15pm
Concierge Conference Center
780 Third Avenue (Between E.48th & E.49th Streets)
New York, NY 10017
Register Here

Family Law Meet and Mingle

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On Wednesday July 25, 2012 the Family Law Section and District 1 and
11 of the Young Lawyers Section held a Meet and Mingle at Traffic Bar
& Grill. Among the 75 plus attendees were members of the Judiciary,
members of the Family Law Section's Executive committee and many young
lawyers. The Event allowed attendees to meet with other local
attorneys and to obtain information about the many benefits and
rewarding opportunities offered by the Family Law Section and Young
Lawyers' Section.

Peter Stambleck, Esq.
YLS Family Law Co-Liaison

Corporations

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What You Should Know About Which Business Form (LLC, Corporation, S-Corp or Sole Proprietorship) You Should Select When You Start A Business
By: Ian Scott, Esq.

As a Certified Public Accountant (C.P.A.) and attorney, I have had my share of questions from clients regarding which type of entity a person should set up if they want to start a business. I too had to ask myself the same question when I started my law firm, and was surprised at how much inaccurate and confusing information exists on the internet. Moreover, as this is a complicated area, some advisors and accountants often give misleading and unclear advice on the topic. As a result, I decided to write this article to break down exactly how you should go about selecting your business entity and some of the things you should consider.

When deciding which entity to select for your business your decision will be based primarily on flexibility in the ownership structure, limited liability protection & tax reasons. For individuals your decision will be between a Sole Proprietorship ("SP"), Corporation ("C") or Limited Liability Company ("LLC") so those are the entities we will focus on. Let us look at the SP, C and LLC in turn.

What Is A Sole Proprietorship & What are The Advantages & Disadvantages?

When you were a child, you may have had a lemonade stand where you bought, peeled and juiced lemons, marketed your event and took in revenue from your lemonade sales. If so, your business would have been a Sole Proprietorship. This type of business is easy to set up and in many places you are not required to do anything in terms of registration with the government. For legitimacy and because some of the entities you deal with (a bank for example) will insist that you register your business, it is always a good idea to register your small business with the Government. In terms of the process, you simply fill out some forms with your State or local Government office, pick a name, pay a fee and start business. When you file your taxes, you will simply list the name of the business on your tax return and also itemize all of your revenues and expenses on your personal return. All in all a very simple set up which can be accomplished without the assistance of a lawyer.

So if it is so simple, why doesn't everybody pick this business form? The key reason is that this business form does not protect the owner's personal property if someone decides to sue the business. The legal terminology for this is that a Sole Proprietorship does not have "limited liability" protection. Instead, the company and the individual are considered the same person and if the business is sued or incurs debts, you, the business owner, will be personally liable. As you can imagine this can be a scary proposition as the end result of a bad business decision could be the loss of a home, car or personal belongings. You should also note that even though you may face a low risk of being sued, this risk jumps significantly if you deal with vendors, hire employees or have clients visit your premises. Even a picture on your website can result in a law suit. As such, this entity is often not selected when people set up a business and instead a limited liability entity (a Corporation or LLC) is selected.

Is A Corporation The Way To Go To Eliminate My Personal Liability?

In order to better separate personal & business finances (and for a number of other reasons too complicated to get into now), Corporations were formed and offer a business owner limited liability protection. Generally speaking, the individual business owner and the Corporation are two completely different people and you will only stand to lose what is invested in the business. Accordingly, if someone sues the business they can only reach the assets in the business and not your personal assets. The same concept applies to debts but as a practical matter, if you have a new Corporation a bank or other lender will usually ask for a personal guarantee as they are fully aware that a Corporation has limited liability. Even with limited liability protection, remember to ONLY include the name of the business on any legal documents such as a loan document, lease, etc., to avoid exposing yourself to liability.

Although limited liability protection gives a business owner peace of mind, there are issues associated with a Corporation. The first is that in order to form a Corporation you must adhere to a certain amount of formality that requires time and expense. For example, you must appoint a board (this can be yourself) and also hold board meetings, develop bylaws and develop minutes. You must also fund the corporation and issue stock to yourself.

The second is the issue of double taxation. As a Corporation is a separate entity, the government will tax the Corporation and then tax the business owner again on their personal tax return. This also means that you must file a Corporate tax return. While double taxation may seem reasonable for IBM or Apple (in that the Corporation's profits are taxed and then distributions to shareholders through dividends are also taxed) it hardly seems fair for a small business who simply set up the Corporation to avoid their home being taken away from them if they were sued. As such, the government created what is called the "pass through entity." The two forms of pass through entities are a Limited Liability Company (LLC) and S tax status. Let us first look at the LLC.

What is A Limited Liability Company (LLC) & Why Would I Opt For This Entity?

A LLC is a relatively new creation that was established to offer the business owner limited liability protection while addressing both of the problems outlined regarding a Corporation above. The first is the formality associated with setting up a Corporation. To address this, a LLC has the advantage that the business owner is not required to adhere to the strict Corporate formality. Instead, a flexible operating agreement is drawn up to describe how the LLC will operate. A LLC also addresses the problem of double taxation as a LLC is a "pass through entity." This means that all of the earnings in the LLC are taxed as if you earned them personally. As such, the entity itself is not taxed but rather the earnings "pass through" to you. The tax preparation is much simpler than a Corporate tax return and is very similar to how you would file as a Sole Proprietorship.

In terms of set up, the process is simple: submit forms to the local government, pick a name, pay a fee and draw up an operating agreement.

Regrettably, there are two downsides to a LLC. First, many states have what is called a publication requirement where you must publish in local newspapers that you plan to open a LLC. (A very odd requirement indeed as I cannot imagine who would read it - do you remember the last time you saw a LLC announced in the newspaper?) In some locations, this can be very expensive. For example, in Manhattan, this requirement would cost approximately $1500. You should consult your local lawyer and ask about the impact of not meeting the publication requirement as it may not be as bad as you think. The second disadvantage is that a LLC is subject to self-employment taxes on all of the income earned. There is relief on the employment taxes though as the LLC can elect "S status" to eliminate this requirement on at least a portion of the employment taxes. This is further described below.

Is "S Status" The Same As A S-Corporation and Can I Elect S Status For A LLC?

When you search the Internet, you will see many references to an "entity" referred to as S-Corporations and you will often see self-employment taxes as one of the advantages of an S-Corporation over an LLC. You should get all of that out of your mind and think of S as a TAX STATUS rather than as a type of entity. If you do, most of your confusion will vanish. So here is the lowdown.

BOTH a Corporation and a LLC may elect S status and if they do, they will avoid self-employment taxes on at least a portion of their earnings. Here is a brief and simple example. An entity (LLC or Corporation) makes $100,000 and the owner assigns themselves a salary of $60,000 (salary must be reasonable in order to qualify). When this occurs, and S status is elected, the owner will only have to pay self-employment tax on the $60,000 rather than the full $100,000. Do not confuse self-employment tax with income tax as income tax is paid on the full $100,000 and this cannot be avoided. In order to be eligible, you must file the S tax status election with the IRS right after you set up the LLC or Corporation (they give you around 60 days).

We just explained how S status works and it may seem like the perfect middle ground. Regrettably though, it too has its drawbacks as the ownership structure has certain requirements and you must be a U.S. resident for tax purposes to be eligible. In addition, if you elect S Status there is a limitation on the amount of owners that may hold shares or membership units in the company. Also, New York City does NOT recognize S Corporation status for corporations so your corporation will be subject to an additional almost 9% tax if you do business in the city. If you are considering electing S Status, you should consult a Lawyer or Accountant as it is a complicated area.

How Does A Professional Corporation Fit Into All Of This?

If you are a doctor, lawyer or other professional, you cannot just set up a "regular" LLC or Corporation. Instead, you must set up a Professional Corporation or a Professional LLC. All this means is that the limited liability will not protect the business owner against malpractice. As such, if you are a professional you must also get malpractice insurance. The idea here is that the Government does not want professionals setting up a limited liability entity and then shirking their professional responsibilities. The entities are the same as a regular Corporation or LLC in all other regards.

Confused? No problem, click here to see a chart that summarizes everything listed above.

Ian E. Scott is a Lawyer and a Harvard Law School Graduate. Mr. Scott worked as a corporate litigator in the law firm Cleary Gottlieb and has recently opened his own law firm Scott Legal Services, P.C.. He is also the author of Law School Lowdown, a law school success guide that will be on bookshelves next spring, and owner of the blog Law School and Bar Exam Success Tips where you will find regular law school blog posts. You can contact Mr. Scott at iscott@legalservicesincorporated.com or 212-223-2964.

Family Law

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The Jurisprudence of Parental Alienation
By Joseph H. Nivin, Esq.

I. Introduction

In child custody proceedings, New York courts are charged with making critical, and emotional, choices about children's lives. These choices include where a child will live, who will make decisions about a child's medical and academic needs, and the level of access that the non-custodial parent will have to his or her own child. The standard for child custody determinations is highly subjective; N.Y. Domestic Relations Law §240(1)(a) provides that courts "shall enter orders for custody. . .as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child[.]" (The only restriction provided by the statute is that no court shall make an order providing for visitation or custody to a person who has been convicted of murder in the first or second degree, or of an offense in a foreign jurisdiction which would constitute said crimes in New York, where the victim was a parent, legal custodian, legal guardian, sibling, half-sibling or step-sibling of a child who is the subject of the proceeding. N.Y. DRL §240(1)(a)(1-c).)

Allegations of parental alienation make the task even more difficult for New York's jurists. Is the child a victim of abuse, or is one parent fabricating allegations to force the other parent out of the child's life? Does the child have valid reasons to oppose any contact with the non-custodial parent, or is the opposition borne of manipulation by the custodial parent?

This article explores the means by which New York courts analyze these important and emotional questions. Specifically, this article will explore: (1) the definitions of parental alienation, (2) the sets of facts that courts use to conclude that parental alienation exists, (3) the remedies after courts enter findings of parental alienation, and (4) the role of the attorney for the child.

II. Defining Parental Alienation

A. Dr. Richard Gardner, and "Parental Alienation Syndrome"

Psychiatrist Richard Gardner defined Parental Alienation Syndrome (PAS) as: The programming of the child by one parent, into a campaign of denigration directed against the other. And the second component is the child's own contributions that dovetail and complement the contributions of the programming parent. People v. Fortin, 184 Misc.2d 10, 12 (N.Y. Country CT.2000).

In other words, Dr. Gardner defined PAS as a disorder where: (1) a parent programmed a child to denigrate the other parent, and (2) the child contributed to that denigration, complementing the efforts of the programming parent.

PAS is not recognized as a valid medical syndrome by the American Medical Association, or the American Psychological Association. In addition, PAS is not listed in the American Psychiatric Association's Diagnostic and Statistical Manual (DSM). Dallas, S.J. (1999). "Parental Alienation Syndrome: Is it scientific?" In E. St. Charles & L. Crook (Eds.), Expose: The failure of family courts to protect children from abuse in custody disputes. Los Gatos, CA: Our Children Our Children Charitable Foundation. New York courts have disallowed expert testimony regarding PAS, holding that the evidence was insufficient in those cases to establish that PAS is generally accepted in the relevant scientific communities. People v. Fortin, 289 A.D.2d 590 (2d Dep't 2001); People v. Loomis, 172 Misc.2d 265 (1997).

PAS is highly controversial, as the American Psychiatric Association (APA) considers its addition to the DSM-V in May 2013. Lithwick, Dahlia. "Mommy Hates Daddy, and You Should Too." Slate.com, May 17, 2011. The National Organization for Women (NOW) advocates against the inclusion of PAS in the DSM-V, or its consideration in custody cases. Letter from Terry O'Neill, NOW President, to the Chair and Members of the Childhood and Adolescent Disorders Work Group of the American Psychiatric Association (APA), dated April 13, 2010. See also Weiser, Irene. "The Truth About Parental Alienation." Stopfamilyviolence.org, February 23, 2007. In a letter to the Childhood and Adolescent Disorders Work Group of the APA, the President of NOW, Terry O'Neill, argued that abusive parents use allegations of parental alienation to discredit parents who are trying to protect their children from further abuse. Letter from Terry O'Neill to the Chair and Members of the Childhood and Adolescent Disorders Work Group of the APA, dated April 13, 2010. She also stated that PAS fails scientific muster, as it was not subjected to empirical studies or peer review. See id. Furthermore, Ms. O'Neill said that acceptance of PAS would allow perpetrators of domestic violence to argue that their victims' responses are pathological. Ms. O'Neill asserted that legitimizing PAS could even help abusive parents to gain custody of their children. Id.

Dr. William Bernet, M.D., is the leading voice supporting inclusion of Parental Alienation Disorder (PAD), or Parental Alienation Relational Problem (PARP) in the DSM-V. Bernet, William, von Boch-Galhau, Wilfrid, Baker, Amy J. L. and Morrison, Stephen L. (2010) 'Parental Alienation, DSM-V, and ICD-11', The American Journal of Family Therapy, 38: 2, 76-187. Dr. Bernet proposes using diagnostic criteria based partially upon PAS as the criteria to diagnose PAD or PARP.

The proposed criteria for PAD are as follows, as stated in Appendix A of the Bernet article:

A. The child - usually one whose parents are engaged in a hostile divorce - allies himself or herself strongly with one parent and rejects a relationship with the other, alienated parent without legitimate justification. The child resists or refuses visitation or parenting time with the alienated parent.

B. The child manifests the following behaviors:

(1) a persistent rejection or denigration of a parent that reaches the level of a campaign

(2) weak, frivolous, and absurd rationalizations for the child's persistent criticism of the rejected parent.
C. The child manifests two of the following six attitudes and behaviors:
a. Lack of ambivalence
b. Independent-thinker phenomenon
c. Reflexive support of one parent against the other
d. Absence of guilt over exploitation of the rejected parent
e. Presence of borrowed scenarios
f. Spread of the animosity to the extended family of the rejected parent.

D. The duration of the disturbance is at least 2 months.

E. The disturbance causes clinically significant distress or impairment in social, academic (occupational), or other important areas of functioning.

F. The child's refusal to have visitation with the rejected parent is without legitimate justification. That is, parental alienation disorder is not diagnosed if the rejected parent maltreated the child.


Dr. Bernet argues that inclusion of such disorders in the DSM-V would enable better study and treatment of parental alienation. He also asserts that inclusion would prevent abusive parents and unethical attorneys from misusing parental alienation in custody disputes. Bernet, William , von Boch-Galhau, Wilfrid, Baker, Amy J. L. and Morrison, Stephen L. (2010) 'Parental Alienation, DSM-V, and ICD-11', The American Journal of Family Therapy, 38: 2, 82.

Joseph E. Cordell, Esq., Principal Partner of Cordell & Cordell, also argues that some parents seek orders of protection, based upon abuse allegations, as "tactical nuclear weapons" in their divorce cases. Mr. Cordell says that these parents make abuse allegations in order to gain exclusive possession of the marital home, and sole custody of the children, by obtaining orders of protection against the other parent. Cordell, Joseph E. "Order of Protection: And Justice For All?" Huffington Post, September 23, 2011.

At present, the general consensus among jurists is that PAS is not generally accepted in the scientific community, and is therefore inadmissible in court proceedings. Fortin, 289 A.D.2d 590; Loomis, 172 Misc.2d 265. The National Council of Juvenile and Family Court Judges recommends that courts deny applications by litigants to introduce expert testimony regarding PAS. National Council of Juvenile and Family Court Judges. "Navigating Custody & Visitation Evaluations in Cases with Domestic Violence: A Judge's Guide." (2006) p. 24.

B. The facts-based inquiry regarding parental alienation

Courts generally engage in an intensive, facts-based inquiry to determine the legitimacy of allegations of parental alienation, without mentioning PAS. Parental alienation encompasses a wide variety of behaviors used by one parent to interfere with the other parent's relationship with their child-in-common.

Courts often find parental alienation where a parent disparages the other parent to, or in the presence of, the children. Anthony MM v. Jacquelyn NN, 91 A.D.3d 1036, 1037 (3d Dep't 2012); Lovitch v. Lovitch, 64 A.D.3d 710, 712 (2d Dep't 2009); Usack v. Usack, 17 A.D.3d 736, 738-39 (3d Dep't 2005); Young v. Young, 212 A.D.2d 114, 116 (2d Dep't 1995); Lauren R. v. Ted R.., 27 Misc.3d 1227A (2010); SMB v. DRB, 17 Misc.3d 1132A (2007). Another ground for a finding of parental alienation is interference with the non-custodial parent's visitation. Jones v. Leppert, 75 A.D.3d 552, 553 (2d Dep't 2010); Lovitch, 64 A.D.3d at 712; Usack, 17 A.D.3d at 738-39; Kershaw v. Kershaw, 268 A.D.2d 829, 830 (3d Dep't 2000); Lauren R.., 27 Misc.3d at 1227A; SMB, 17 Misc.3d at 1132A. Further grounds include relocation with the child or children, without consent or a court order, Ortega-Bejar v. Morante, 81 A.D.3d 962, 962 (2d Dep't 2011), and discussion of the case with the child or children. T.F. v. F., 148 A.D.2d 449, 451 (2d Dep't 1989).

A common ground for a finding of parental alienation is fabrication of abuse or neglect allegations against the other parent. See Anthony MM, 91 A.D.3d at 1037; Martinez v. Hyatt, 86 A.D.3d 571, 571 (2d Dep't 2011); Sloand v. Sloand, 30 A.D.3d 784, 785-86 (2d Dep't 2006); Amanda B. v. Anthony B., 13 A.D.3d 1126, 1127 (4th Dep't 2004); Young, 212 A.D.2d at 116; Lauren R.., 27 Misc.3d at 1227A. Where one parent accuses the other of abuse or neglect against a child-in-common, this creates a volatile situation for jurists presiding over custody cases.


C. The precarious situation where a parent reports abuse or neglect by the other
parent

A difficult situation arises where a parent discovers evidence that the other parent is abusing or neglecting their child-in-common. Aside from the inherently painful nature of the situation, the parent must make a difficult choice about how to proceed in court.

A parent has a legal responsibility to protect a child from abuse or neglect from the other parent. If a parent fails to fulfill that duty, the court can find that the parent abused or neglected the child, by failing to protect the child from the abuse or neglect. N.Y. Family Court Act §§1012(e) and (f); The Matter of Karen BB and Another, 216 A.D.2d 754 (3d Dep't 1995); The Matter of Alan G., 185 A.D.2d 319 (2d Dep't 1992); The Matter of Beverly WW, 159 A.D.2d 802 (3d Dep't 1990); The Matter of Glenn G. and Another, 154 Misc.2d 677, 688 (1992). In contrast, if a custodial parent manufactures allegations that the non-custodial parent abused or neglected the child, the court may change custody based upon parental alienation. Anthony MM, 91 A.D.2d at 1037-38; Martinez, 86 A.D.3d at 571; Sloand, 30 A.D.3d at 785-86; Amanda B., 13 A.D.3d at 1127-28; Young, 212 A.D.2d at 116; Lauren R., 27 Misc.3d at 1227A.

Where a custodial parent accuses a non-custodial parent of abuse or neglect, the non-custodial parent's defense will generally be that the custodial parent manufactured the allegations in order to alienate the child or children. Therefore, where a custodial parent seeks judicial intervention to protect a child from the other parent, there lies a danger that the court will credit the non-custodial parent's version, and change custody. On the other hand, if the custodial parent fails to act against an allegedly abusive or neglectful non-custodial parent, the custodial parent faces the danger of a judicial finding that such inaction itself constituted child abuse or neglect.

D. "Bridget's Law"

To assist parents seeking to protect their children, in 2008, Governor Paterson signed "Bridget's Law," which provides that:

If a parent makes a good faith allegation based on a reasonable belief supported by facts that the child is the victim of child abuse, child neglect, or the effects of domestic violence, and if that parent acts lawfully and in good faith in response to that reasonable belief to protect the child or seek treatment for the child, then that parent shall not be deprived of custody, visitation or contact with the child, or restricted in custody, visitation, or contact, based solely on that belief or the reasonable actions taken based on that belief. N.Y. Domestic Relations Law §240(1)(a). See also Stashenko, Joel. "New Law Shields 'Good Faith' Abuse Accuser in Custody Cases." New York Law Journal. September 9, 2008, p. 1.

In theory, the law addresses the predicament that a custodial parent faces when confronted with evidence that the non-custodial parent's behavior endangers the child. Nevertheless, it is unlikely that the law will result in a drastic change. In order to be protected by Bridget's Law, the court must find that the accuser-parent acted in good faith. Because the parents likely had a tumultuous relationship prior to the accusations of abuse or neglect, the accused parent will almost invariably contend that the other parent acted in bad faith. The accuser-parent will face the same possibility that the court credits the other parent's version, and suffer the same consequences as a result.

III. Remedies after a finding of parental alienation

After a court enters a finding of parental alienation by a custodial parent, a common remedy is for the court to change custody. Anthony MM, 91 A.D.3d at 1038; Martinez, 86 A.D.3d at 572; Ortega-Bejar, 81 A.D.3d at 963-64; Jonex, 75 A.D.3d at 553; Lovitch, 64 A.D.3d at 711; Frey v. Ketcham, 57 A.D.3d 543, 543-44 (2d Dep't 2008); Sloand, 30 A.D.3d at 784, 785-86; Amanda B., 13 A.D.3d at 1127; Bobinski, 9 A.D.3d at 441-42; Young, 212 A.D.2d at 125. A change of custody should not be issued "solely as a means for punishing a recalcitrant parent." Lauren R., 27 Misc.3d at 1227A. However, parental alienation is an act considered inconsistent with the best interests of the child, which raises a "strong probability that the offending party is unfit to act as a custodial parent." Young, 212 A.D.2d 114, 115. The court may also issue an order that the offending party receive supervised visitation, and participate in therapy. Zafran v. Zafran, 28 A.D.3d 753, 754 and 756 (2d Dep't 2006). Where the court finds that the custodial parent is responsible for alienating the child from the non-custodial parent, the court may, short of changing custody, award expanded visitation to the non-custodial parent. Goldstein v. Goldstein, 68 A.D.3d 717, 720 (2d Dep't 2009).

Where a court finds that a custodial parent has wrongfully interfered with or withheld visitation provided by a court order, the court may suspend alimony or maintenance, or cancel arrears that accrued during the time that visitation was being interfered with or withheld. N.Y. Domestic Relations Law §241. However, interference with visitation cannot serve as a defense in an application to enforce payment of child support, and cannot constitute grounds for cancellation of child support arrears. Id.

While parental alienation cannot serve as a ground to cancel child support obligations retroactively, courts have suspended child support obligations prospectively, upon a finding that the custodial parent deliberately interfered with the relationship between the child and the non-custodial parent. Colicci v. Ruhm, 20 A.D.3d 891, 891-92 (4th Dep't 2005); Usack v. Usack, 17 A.D.3d 736, 737-38 and 739-40 (3d Dep't 2005); Hiross v. Hiross, 224 A.D.2d 662, 663 (2d Dep't 1996); SMB, 17 Misc.3d at 1132A. In The Matter of F.S.-P. v. A.H.R., Nassau County Family Court held that a non-custodial parent can invoke parental alienation as a defense where the custodial parent seeks an initial child support order. 17 Misc.3d 390, 393 (2007). A parent who seeks suspension of child support based upon parental alienation must demonstrate that the custodial parent deliberately interfered with the parent-child relationship. Foster v. Daigle, 25 A.D.3d 1002, 1004 (3d Dep't 2006); Hiross, 224 A.D.2d at 663. Furthermore, the Court cannot impose this remedy if the record establishes a danger that the child will become a public charge as a result. Usack, 17 A.D.3d at 739; SMB, 17 Misc.3d at 1132A.

Other remedies for parental alienation include criminal liability for custodial interference (N.Y. Penal Law §§135.45 and 135.50), a tort action for custodial interference, and orders of protection. N.Y. Domestic Relations Law §240, Lauren R., 27 Misc.3d at 1227A. Where the court finds that acts of parental alienation violate prior court orders, the court may also incarcerate the offending party. N.Y. Judiciary Law §§750 and 753; see also Lauren R., 27 Misc.3d at 1227A.

IV. The Role of the Attorney for the Child

In child custody proceedings, New York State courts have the authority to appoint attorneys to represent children "when, in the opinion of the family court judge, such representation will serve the purposes of this act, if independent legal counsel is not available to the child." N.Y. Family Court Act §249(a).

On October 17, 2007, the Chief Judge of the State of New York Judith S. Kaye issued Rule 7.2, entitled, "Function of the attorney for the child." Rule §7.2(d)(2) provides, in relevant part:

[T]he attorney for the child must zealously advocate the child's position. . .If the child is capable of knowing, voluntary and considered judgment, 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 interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.

If a parent successfully alienates a child from the other parent, it is clear that the child will wish to have a minimal relationship, or even no relationship, with the alienated parent. Therefore, under the Rules of the Chief Judge, it is likely that an attorney for the child will have to advocate for the court to issue as little parenting time as possible for the alienated parent. Family Court practitioners are aware that the position of the attorney for the child often carries significant weight. The requirement for direct advocacy by the attorney for the child may cause frustration among litigants who assert that the opposing party has alienated the children. As Rule 7.2 becomes more established, the bar should expect to see appellate cases, where aggrieved parents argue that courts gave undue weight to children's attorneys who advocated the wishes of alienated children.

V. Conclusion

One could hardly think of a more important task for a judge than the task of deciding which parent should have custody of a child. Allegations of parental alienation make the task even more difficult.

Presently, the American Psychiatric Association is deciding whether parental alienation should constitute a disorder in the DSM-V. Is parental alienation a tool for abusive parents to obtain custody or their children, or is it a syndrome which merits scientific study, and treatment for its child victims? The APA's decision will have critical consequences for the Family Court, and for the scores of children whose futures depend upon the decisions of Family Court judges.

Regardless of whether parental alienation is a mental disorder, courts constantly face allegations that litigants are engaging in behaviors designed to interfere with parent-child relationships. These same courts must then decide whether parental alienation exists, or whether the party asserting alienation is an abusive parent. These choices, based upon conflicting testimony and subjective determinations, make or break the lives of innocent children, who find themselves in the middle of a conflict between the two most important people in their lives.

Recent developments in the role of the attorney for the child complicate parental alienation cases. As attorneys for children advocate the wishes of their child-clients, alienated parents find themselves feeling more frustrated in their battles to maintain relationships with their children.

Parental alienation cases feature the most desperate litigants: parents willing to falsely accuse the other parent of child abuse, and abusive parents who try to bury the other parent for protecting the child. The devastating consequences of parental alienation cases remind members of the bar of the importance of serving as counselors, as well as advocates. If we successfully counsel our clients to put the children's best interests at the forefront, we can make an immeasurable impact upon the lives of the children who depend upon the Family Court.

Joseph H. Nivin, Esq. is a solo practitioner at The Law Offices of Joseph H. Nivin, P.C. His practice, based in Jamaica, NY, focuses on family law. His website is http://www.nivinlaw.com/.

Immigration and Criminal Law

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Deferred Action for Childhood Arrivals and the Responsibility of Criminal Lawyers
by Mikhail Izrailev, Esq.

Since the Supreme Court's decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), the onus has been on the criminal bar to ensure that their clients are made aware of the immigration consequences of their pleas. This has resulted in unheralded levels of collaboration and consultation between the criminal bar and the immigration bar. As an immigration attorney, I have witnessed first-hand the increased willingness of criminal attorneys to both ask questions and listen to the answers.

By now, many criminal attorneys have familiarized themselves, at least in some small part, with resources such as the charts provided by the Immigrant Defense Project detailing the immigration consequences of criminal convictions in New York, New Jersey, Pennsylvania, and Connecticut. Some criminal attorneys have gone a step further and familiarized themselves with terms of art which the immigration bar has struggled with for years - aggravated felonies and crimes of moral turpitude as defined under the Immigration and National Act. While these terms of art are seemingly ambiguous at times even for immigration attorneys, criminal attorneys have learned that they should consult with their colleagues in the immigration field to determine if what seems to be a simple criminal misdemeanor can result in the deportation of their clients.

The delicate relationship between criminal and immigration attorneys has been further complicated by the recent announcement of U.S. Department of Homeland Security ("DHS") Secretary Janet Napolitano concerning Deferred Action for Childhood Arrivals ("DACA"). DACA has developed as an offshoot of an official government program that has existed for approximately the last 45 years. First disclosed by the government in the mid 1970's, Deferred Action was originally known as the Non-priority program. The Deferred Action program allows the Department of Homeland Security to refrain from deporting an individual who is otherwise subject to removal. An individual granted deferred action is given the opportunity to apply for an employment authorization card, but the program is not a pathway to lawful permanent residence or citizenship. The Obama Administration's DACA program is a discretionary use of executive power to allow DREAMER's, children who arrived in the United States unlawfully at a young age, to remain in the United States under color of law.

Applicants for the DACA program must be able to meet a number of evidentiary requirements. Most importantly they must be under the age of 31 as of June 15, 2012 and they must be able to demonstrate that they have not been convicted of a felony, "significant misdemeanor," or three misdemeanors at any time. Accordingly, both criminal attorneys and members of the immigration bar have been stuck scratching their heads. What is a "significant misdemeanor?" A felony is defined as a federal, state, or local criminal offense punishable by imprisonment for a term exceeding one year. Similarly, three misdemeanors at any time is a term with little ambiguity. Nevertheless, neither criminal attorneys nor immigration attorneys are familiar with the term "significant misdemeanor."

The Department of Homeland Security attempted to clarify this new term of art. A "significant misdemeanor" is an offense of domestic violence, exploitation, sexual abuse, burglary, unlawful possession or use of a firearm, drug distribution or trafficking, driving under the influence, or an offense for which an individual was sentenced to time in custody of more than 90 days (not including a suspended sentence). See Consideration of Deferred Action for Childhood Arrivals. USCIS, www.uscis.gov (Sept. 14, 2012) (follow hyperlink on homepage).

Mikhail Izrailev is a graduate of the Benjamin N. Cardozo School of law, where he served as the Executive Editor of the Cardozo Journal of International and Comparative Law. Mikhail is an associate with Wildes & Weinberg, PC, a firm which has been exclusively dedicated to the practice of immigration and nationality law for the last 52 years. The author can be reached at mizrailev@wildeslaw.com and encourages his colleagues in the criminal bar to reach out to him with questions.

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Electronically-In-Touch is the monthly electronic news-publication of the NYSBA Young Lawyers Section (YLS). It is a member driven publication, encouraging YLS members to write articles, and as such we would welcome submissions from members on any relevant topic, including practice tips, substantive legal articles, case updates, work/life advice, and information regarding upcoming meetings and events. Please submit articles to Erin K. Flynn, Esq., at erin.k.flynn@gmail.com, no later than the 15th of the month.

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