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Clifford Petroske is pleased to announce that the Law Offices of Clifford J. Petroske, P.C., has become Petroske Riezenman & Meyers, P.C.  The change is made in recognition of the contributions of attorneys Ryan A. Riezenman, who has been with the firm since September, 2009, and Michael W. Meyers, who joined the firm in November, 2011. The legal acumen, strength of character, and commitment to the firm and its clients demonstrated by Mr. Riezenman and Mr. Meyers during their years as associate attorneys are commendable.  Mr. Petroske and the entire staff congratulate Ryan and Michael on this well-deserved accomplishment.

In a recent tightly orchestrated, if not closely watched, courtroom drama, New York has rejected the claim that chimpanzees possess the fundamental right to liberty. The suit brought by the Nonhuman Rights Project against Patrick Lavery, the owner of Santa’s Hitching Post, a farm and tourist attraction in Gloversville, New York, tested the rights of chimpanzees by using an ancient legal device known as a Writ of Habeas Corpus to seek the release of Tommy, a twenty-six year old chimpanzee, from solitary confinement.  A Writ of Habeas Corpus, once signed by a judge, directs that someone produce another person in court, to determine if that person is being illegally detained. The New York Supreme Court Appellate Division for the Third Department refused to reverse a lower court’s rejection of the Writ, declaring that only human beings can seek protection of basic rights such as liberty.  It refused to consider the autonomy and self-awareness of chimpanzees, and instead focused on the underlying social contract that is the basis for the legal protection of rights, concluding that chimps are incapable of participating in that contract.  In what sounded more like philosophy than law, the Court reasoned that “[s]ociety extends rights in exchange for an express or implied agreement from its members to submit to social responsibilities.” Not being responsible for their actions, chimps cannot be a party to that contract, and so are not entitled to all of the rights conferred by society.  The Court was quick to qualify this equation, however, pointing out that chimps, like other animals, are still afforded protections against cruelty and unjustified killing under the state’s Agriculture and Markets Law and Environmental Conservation Law. Sensible enough, perhaps, until you consider the protections afforded a child unlawfully detained.  New York State has long provided that a writ of habeas corpus may be used to secure the return of a child to the lawful custodial parent (or grandparent) (Domestic Relations Law sec.70 and Family Court Act sec. 651).  Translating from the latin, a writ of habeas corpus literally demands the return of the “body” of the person detained, and makes no distinction for the ability of any particular child to participate in a social contract and “submit to social responsibilities.”  If only… Be that as it may, there is no question that a writ of habeas corpus is an essential tool for the resolution of human family conflicts.  It is certainly the fastest proceeding for the determination of a custody dispute, requiring the parties to appear in court “forthwith or on any day or time certain, as the case requires” (CPLR 7004[d]).  Its use is limited to “person[s] illegally imprisoned or otherwise restrained in his [or her] liberty within the state.”  This covers children (not chimps) withheld from a parent who was granted legal custody by court order, but also covers those children for whom there is no court order directing custody.  In fact, in the absence of a court order, it is the only way to secure the return of a child when one parent takes a child away from the child’s home and refuses to return him or her.  Unfortunately, this is an all too common occurrence.  A writ is very effective in bringing order back to a household that has erupted in conflict, as the parties are in court usually within a few days, or at most a week from the child’s abduction. Thankfully, at least for now, there is no requirement that the parent petitioning with a writ prove that the detained child can “bear legal duties, submit to societal responsibility or be held legally accountable for their actions,” as the Third Department required for the proposed chimpanzee writ.   The parent need only prove that the child is being kept away from his habitual residence and the care and supervision of a parent.  A human parent, to be precise.

It is no secret that the Courts are overburdened with litigation.  With matrimonial trials sometimes lasting weeks, courtroom time is at a premium.   Wishing to reduce both the congestion and the cost of litigation, judges will commonly appoint “neutral” experts, instead of each party hiring his/her own partisan expert.  By appointing a neutral expert, the Court avoids the problem of different experts arriving at different opinions.  Where there are different opinions on important issues like asset values or parental fitness, trials are more likely because the parties cannot agree on important terms. In matrimonial cases, trials are often avoided when a neutral expert produces his or her report in court in advance of trial.  The attorneys read the report and typically discuss the conclusion(s) with the judge in conference.   That conclusion holds great weight --- after all, it was produced by a neutral expert who presumably had no reason to be biased in favor of either party.   Many judges make no secret that they are inclined to reach the same conclusion at trial that appears in the neutral expert’s report.  In this way, a neutral expert’s report not only discourages the disagreements that come from having different experts, it also becomes a tremendous tool to pressure litigants to settle. The power of the neutral expert is even more compelling when the expert is a forensic psychologist.  Custody trials are among the longest and nastiest contests to grace a courtroom.  A judge who possesses leverage to avoid such a spectacle is loathe to give it up.  Not surprisingly, an attorney who suggests that the forensic psychologist was biased in favor of one of the parties, or who for any reason believes that the conclusions are unsupported by the raw data that underlies the report, often meets with resistance.  Initially, there is reluctance to believe that a court-appointed neutral professional would ever be unfair.  The operative assumption is that neutral equals unbiased.  However, this fails to consider that many things can cause bias, and not just the prospect of pecuniary gain.  Even something as mundane as a good first impression can cause a favorable bias.  Known in psychology as “confirmatory bias,” it can afflict anyone, even a lofty forensic psychologist.  Of course, gender, ethnicity, and cultural norms cause bias too. There are other problems with forensic reports, including incomplete and sloppy investigations, reliance on unreliable collateral sources, and poorly scored psychometric testing.  Unfortunately, few if any of these problems are readily apparent from reading the forensic psychologist’s report.  The only way to know what is really going on is to look at the underlying data, including the psychologist’s notes from interviews of the parties and the children, notes from interviewing collateral sources (teachers, social workers, grandparents, etc.), or a party’s  answers to the psychometric testing and the method by which the test was scored. But gaining access to the underlying data is problematic, and not just because the court has a vested interest in keeping things simple. There are potential problems that come with disclosure of the data.  Children who trust that the forensic examiner will not reveal what they say in confidence may feel betrayed should this information come into the courtroom.  The parties themselves can become the target of unscrupulous public disclosure of sensitive information revealed in interviews. Clearly, there is a need to balance disclosure with safeguards to protect litigants and children.  Legislation sponsored by Assemblywoman Helene Weinstein (A08342A) earlier this year sought to strike this balance.  The bill provided that “any report prepared by the forensic evaluator shall be confidential and under seal except that all parties, their attorneys and the attorney for the child shall have a right to a copy of the forensic report as well as copy of the forensic evaluator's file, including supporting records and data.”  The bill also proposed to protect the litigants and their children from abuse by directing courts to issue protective orders imposing restrictions on republishing and distributing the reports, and provide a mechanism where courts can punish a delinquent party with contempt of court. Unfortunately, the bill failed to pass.  But all is not lost.  Recently, Nassau County Supreme Court Justice Jeffrey Goodstein issued a landmark decision in <em "mso-bidi-font-style:="" normal"="">J.F.D. v. J.D. (NYLJ … 10/17/14) which attempts to strike that same balance.  Holding that a divorcing husband’s attorney and expert (hired for trial) were entitled to review all the raw information generated by court-appointed forensic, Justice Goldstein ruled that, going forward, he would --- with certain ground rules in place --- allow the parties themselves to review the report of the neutral expert, as well as the raw materials.  Justice Goldstein considered this disclosure essential to effective cross examination.  Without the raw data, “the litigator is limited to cross examination of the forensic evaluator and a forensic report without knowing which questions to ask and without being able to properly establish to the court, the trier of fact in matrimonial cases, any deficiencies in the report or bias on the part of the evaluator.” This decision is long overdue, and hopefully other trial courts will follow suit.  Giving each party the ability to effectively challenge an unfair report at trial by having meaningful access to the report and the underlying data, while placing safeguards in the way of abusive disclosure, should be every litigant’s right.   With custody reports from court-appointed neutral forensic psychologists being given so much weight in our busy court system, it is essential that fair and equal access to the underlying data be afforded to all.

At first, just leaving Queens to attend the University of Miami must have seemed glamorous.  Add to that dating NBA all star Paul George, and for Daniela Rajic, it must have seemed other-worldly  --  at least until a pregnancy test came up positive.  Upon returning home to her family in Queens where she gave birth, she commenced a paternity and child custody proceeding because she could not get Mr. George to step up to the plate (or basket, if you will)(Rajic v. George, Sup. Ct. NY, 350038-2014 NYLJ).  Incredibly, paternity was never in doubt.  Mr. George had already submitted to a private paternity test, which revealed he likelihood of paternity was 99.9%. As often happens in cases where there is really no question that the respondent is actually the father, Paul George quickly denied paternity and sought to dismiss the petition.  Never mind that he started a paternity proceeding in Florida where he alleged that “upon information and belief” he is the father of the child.  What is going on here?  Nothing more, nor less, than a very expensive legal shopping trip.  Of course, having top shelf attorneys as his personal shopping consultants is bound to make any legal shopping spree expensive.   But far more expensive is the New York support order to which a New York paternity order would lead.  Two points were surely not lost on Mr. George (given the expertise of his shopping consultants): First, a New York support order will run until the child is 21, the legal age of emancipation in New York, compared to the age of 18 in Florida.  Second, in many Florida courts, there is a working assumption that some form of shared custody is best for the child, and once that is established, there is a reduction of child support down from the prescribed child support calculation.   In other words, getting the case out of New York and into the Florida courts is worth big bucks. The New York Court partially granted Mr. George’s application to dismiss the petition, dismissing the paternity claim, but upheld Ms. Rajic’s custody claim.  The Court’s reasoning, at least as far as the paternity claim is concerned, certainly makes more sense than the legal maneuvering that led to it.  Because Mr. George had virtually no contact with New York State, the petitioner had no business demanding that he submit to the New York court’s jurisdiction.  Lacking personal jurisdiction (really another word for power to act), the New York court can do nothing to determine paternity.  For there to be personal jurisdiction over Mr. George in a New York paternity proceeding, he would have had to live here with the child or lived here and provided support to the child here, or have directed that the child live here, or had sexual relations with the petitioner here at a time likely to have resulted in conception.  Since none of those things were true, the paternity case was dismissed.  But before Mr. George celebrates a (partially) successful shopping trip, he should keep in mind that the Florida law on personal jurisdiction is the same as New York’s law since the statute is a uniform act (the Uniform Interstate Family Support Act) and that none of the potential forms of contact with Florida appear to apply to Ms. Rajic (the closest she comes is sexual intercourse in Florida, but according to the New York court’s findings, it was after the possible conception of the child).  Of course, Ms. Rajic will have to bring a paternity proceeding somewhere, and that state could either be Mr. George’s state of residence or California where, it appears, the parties engaged in sexual relations that actually led to conception.  But California’s age of emancipation, like most states, is 18.  It looks like Mr. George’s forum shopping may be successful after all.

These days it goes without saying that intercepting email is a violation of the law.  Although the occasional hapless employee is surprised to learn that his or her employer can lawfully view personal emails sent or received on office equipment, by and large, most people know to avoid overt efforts at intercepting communications.   But what about spouses with two or more email accounts offered by a service provider’s family plan, where one of the spouses knows the password of the other spouse?  Does access to the other spouse’s account, directly or by forwarding, violate the law? A recent decision by Federal District Court Judge Vincent Bricetti in Zaratzian v. Abadir, SDNY 9/2/14, illustrates what can happen when a shared email account is not closed until long after the parties have separated.  In Zaratzian, the husband (Adel Abadir) opened an email account for the wife (Annabelle Zaratzian) in 2003, two years before they separated.  Because Ms. Zaratzian was unfamiliar with computers, Mr. Abadir configured her new email account and set her password.  There was no question that she authorized him to do so.  Before they separated in 2005, the husband enabled the auto-forwarding function.  Although he claimed she agreed to this so that he could keep track of the children’s extracurricular activities, she disputed that she ever consented to this. It should not be hard to guess where this ended up.  Ms. Zaratzian took over the email subscription (Cable Optimum) in November 2005, after the parties’ separation earlier that year.  In 2009, she realized that her former husband’s email account was still open on the plan and canceled it.   But by then the damage had been done.  Mr. Abadir had intercepted an email from Ms. Zaratzian’s accountant containing an attachment of her 2008 tax return and used it against her in a 2010 Family Court support proceeding.   Federal litigation ensued with multiple claims, some of which involved the federal Wiretap Act (18 USC Ch.119) which prohibits the interception of electronic communications and allows for compensatory and punitive damages, as well as reimbursement of attorney’s fees. Mr. Abadir applied for summary judgment, hoping to dismiss the federal Wiretap claim on the grounds that Ms. Zaratzian had consented to his access to her email account.   Although the Wiretap Act prohibits any interception of electronic communications, the plaintiff’s “prior consent to such interception” is a complete defense.  Ms. Zaratzian conceded that she had consented to Mr. Abadir setting up her email account and setting her password.  Obviously, this initial consent allowed Mr. Zaratzian to view her emails.  It even allowed him to go into her account and enable the auto-forward function, which he did.  The dispute concerned the scope of the consent conferred by that initial consent.  Was it intended to last indefinitely, even after their separation?  Judge Bricetti thought not: “The Court is not persuaded the permission Zaratzian gave Abadir to set up her email account and choose a password for her constitutes ‘wholesale’ consent to Abadir reading her personal emails in perpetuity…”  Disagreeing with Mr. Abadir’s argument that Ms. Zaratzian’s consent was necessarily unqualified, the Court denied Mr. Abadir’s application for judgment dismissing the claim.  This does not mean that Mr. Abadir has lost the case.  It just means that the case will go all the way through trial, and a jury will now get to decide just what Ms. Zaratzian meant when she gave that consent. This is not good for Mr. Abadir, or for anyone else who might find himself in his position.  Juries can be a fickle bunch.  Quite possibly the jury will agree with Ms. Zaratzian, that she did not intend her consent to last forever.   Surely, common sense comes into play.   If you allowed your spouse to set your password while you were (more or less) happily married, would you expect that to continue until long after your marriage was dissolved? It’s hard to argue with common sense.  Best to avoid the trouble, and sever all ties when separating, including email accounts.

It’s hard to know just what it is that you don’t know.  When you think you know enough to handle your own case in court, you may know just enough to fool yourself, but not the court.  The recent divorce case G.T v. A.T. from Suffolk County, New York, provides a striking example of just how bad it can get. No doubt, certain truths seemed self-evident to the pro se defendant husband, an engineer with a masters degree who has nearly completed his PhD.  Why would he need an attorney to dispute his wife’s simple allegation that their marriage was “irretrievably broken?”  Why would he need an attorney to get his wife to pay half of the credit card debts?  And why should he worry about paying her attorney’s fees? Why? Because things are not always what they seem.  To start with, the husband was apparently unaware that, by law, his former income of $90,000 (nearly double the wife’s income) represented his earning capacity because he openly admitted that he had quit his job without cause and had not sought re-employment.   So, even though he was, at the time of the trial, without employment, his income was imputed to his former earnings level. By itself, this was not such a problem, since there was no issue of maintenance or child support before the trial court.  However, having twice the wife’s income (even if it was only imputed or hypothetical income) triggered a statutory presumption that counsel fees would be awarded to the less-monied wife.  By law, the Court is also charged with considering the relative merits of the parties positions at trial, and the actions taken by either party to prolong the trial when deciding an attorney’s fees application.  Because the husband lacked cross examination skills, pursued inquiries that were irrelevant, argued with the Judge over rulings on evidence, and gave rambling and irrelevant testimony, he set himself up to pay attorney’s fees.  For example, the husband persisted in litigating and contesting the no-fault ground for divorce, even though the proof, by plaintiff’s sworn statement, that the marriage is irretrievably broken cannot be overcome by the defendant’s testimony.  Not surprisingly, a trial that should have lasted three or four days, lasted twelve (according to the judge). Ironically, not knowing what he was doing may have cost the husband more money than it would have cost him to hire an attorney.  The Court ordered the husband to pay all of his wife’s trial fees ($11,000-- although it would have been higher had the wife’s attorney not been working on a reduced-fee basis.) Even something simple like asking the court to split up marital debt backfired.  Apparently unaware of the need to prove the amount of his debt as of the date of the commencement of the divorce action, the Husband only presented proof of his current debts.  The Court was unable to determine how much (if any) of the husband’s $34,000 in credit card debt existed when the action started, and how much had been accumulated afterwards, and so was “constrained” to make him solely responsible for the total amount of this debt. Of course, not everyone can afford an attorney when going through a divorce, but being “penny wise” can be “pound foolish,” if you have something to lose, and choose to go it alone in the courtroom.

There is no question that equal access to the courts is essential to the fair administration of justice.  Whether it’s filing an initial petition, demanding a speedy trial, or gaining access to court records, all persons should be afforded equal opportunity.   This may be self-evident to some, but in the murky arena of child custody litigation it is far from common practice.  Rules concerning access to child custody forensic evaluations vary widely by jurisdiction, by county and even from one judge to another in the same county, with restrictions against copying and removing the report from the courtroom imposed upon self-represented persons. This past week, Dr. Eric Braverman, a prominent Manhattan neurosurgeon who is representing himself in a contested custody case, was arrested in the courtroom hallway and charged with tampering with public records in the second degree and criminal contempt, for allegedly attempting to take a forensic report from the courtroom.  The charges stem from the order imposed by Justice Deborah Kaplan restricting Dr. Braverman to reviewing the report inside the courtroom only and further requiring that he not remove or copy it.  Dr. Braverman was visiting the courtroom and reviewing the report (assisted by an attorney who had not formally appeared in the case), when the attorney was allegedly seen putting the report in her bag by the supervising court clerk. Dr. Braverman and his attorney-assistant had good reason to want the report.  A forensic report is prepared by a forensic psychologist to assist the court in a custody case.  It provides psychological profiles of the parties utilizing psychometric tests (MMPI and MCMI are commonly employed) along with extensive interviews and collateral source contacts for the purpose of making recommendations to the court as to which of the parties is the more fit custodial parent.  Not surprisingly, it holds a lot of weight at trial and in settlement negotiations.  It’s not only a big deal, but it’s also a big document, typically 50 or more pages, and is difficult to review and absorb, much less analyze for cross examination, in a single sitting while being watched over by often-impatient court personnel. Anyone in Dr. Braverman’s position would want to review the forensic report more closely than an hour or so in a courtroom would allow. Regardless of whom the report favors, the report as well as the underlying data upon which it is based (raw test scores, interview notes, etc.) must be reviewed carefully to prepare for trial.   Reports can contain mistakes and generalizations, and can reach conclusions that are unsupported or even contradicted by the data.  Only the individual parties are in a position to assess the factual content of the report. Which is why rules that restrict unrepresented parties from obtaining copies of forensic reports are so unfair.  Parties who are represented by attorneys fair better – usually the attorney is at least allowed to remove a copy from the courtroom.  But even then, judges will often restrict the attorney from showing, and sometimes from even discussing the report with the client.  The fear animating these rules is that exposing statements made by the parties’ children in confidence to the forensic psychologist would undermine the forensic process and harm children if they realized their parents know what they said; also, litigants might post personal content online or elsewhere just to hurt the other party. Recent legislation introduced by NY Assemblywoman Helen Weinstein (Bill No. AO8342) aims to ensure greater access to forensic reports by both attorneys and the litigating public, while providing enforcement measures designed to curtail abuse.  The bill provides that “any report prepared by the forensic evaluator shall be confidential and under seal except that all parties, their attorneys and the attorney for the child shall have a right to a copy of the forensic report as well as copy of the forensic evaluator's file, including supporting records and data.”  The bill also proposes to protect the litigants and their children from abuse by directing courts to issue protective orders imposing restrictions on republishing and distributing the reports, and provides a mechanism where courts can punish a delinquent party with contempt of court. Many efforts have been made over the years to better regulate the forensic process in custody matters.  This one hits the mark.  Contact your state representative to voice your support.

It should not surprise anyone that parties to a divorce action are often unable to agree on who should keep the prized family pet.  As with any other issue, when they are unable to agree, the parties must look to the court for a determination.  Until recently, the results were often disappointing because the courts were constrained to consider domestic animals only as property.  Thankfully, the law in New York is now evolving to consider the place the pet has occupied in the family, and not just which party has the superior property claim to the animal. Traditionally, in a divorce action a pet has been viewed as property, not different than a chair or a set of dishes.  First, the court considers first whether the animal is separate or marital property.  If received as a gift from a third party, or owned by one of the parties from before the marriage, the animal is kept by that party as his/her separate property.  If the pet does not fit into a separate property category, the courts may distribute the animal to one or the other party somewhat arbitrarily, sometimes granting the losing party a monetary credit equal to the fair market value of the animal (see, CRS v. TKS 192 Misc 2d 547 [Sup Ct NY Cty 2002]). The law has been slow to evolve and this traditional view is still the law in much of the state.  Indeed, it was not until 1979, in Corso v. Crawford Dog and Cat Hospital, Inc. (97 Misc 2d 530) that a New York court recognized that “a pet is not just a thing” and is something “in between a person and a piece of property.”  In that case, the Queens Civil Court awarded a bereaved pet owner damages for emotional distress caused by a veterinarian who wrongfully disposed of the remains of a poodle, and tried to cover it up by putting a dead cat in the pet’s casket. Unfortunately, the Corso case is a lower level non-matrimonial case, and bears little weight in a divorce.  In the New York metropolitan area, cases decided by the First and Second Departments of the Appellate Division of the Supreme Court determine the rules to be followed by the local divorce courts.  For this reason, it was encouraging that in 2008, in a case called Feger v. Warwick Animal Shelter 59 AD3d 68), the Second Department recognized that “companion animals” are a “special category of property” to be “treated differently than other forms of property.”  Although this appellate level authority gave credence to the idea that pets are more than mere property, it was not a matrimonial case, and so it provides no guidance for how divorcing parties can expect a court to rule on who gets possession of a pet. The Appellate Division, First Department, which covers cases from Manhattan (New York County), was the first to weigh in on the question of pet possession.  Although not a divorce case, Raymond v. Lachmann, 264 AD2d 340 (1st Dept 1999) dealt with the right to possession of ten year old cat named Lovey.  Instead of treating her as mere property, the court awarded possession of Lovey to her most recent owner of the past four years, reasoning this outcome was the “best for all concerned” because Lovey had “lived, prospered, loved and been loved” there.   Remarkably, the Raymond court appeared to abandon property law principals in reaching its decision.  The Raymond case is significant because it is not an injury case, and instead deals with the possession of a companion animal in much the same way that a divorce case would. The law moves slowly, however, and without a precedent from an actual matrimonial case to guide the courts, the Raymond case remains an outlier.   Yet a recent matrimonial case decision that relied upon Raymond is a valuable illustration of how the reasoning employed in that case may take hold in matrimonial litigation. The case is Travis v. Murray (308310/13 NYLJ 1202631512607 (Sup Ct NY County, 11/29/13)(Cooper, J.).  If it were not for Joey, the 2½ year old miniature dachshund at the center of the case, the parties, a couple married in October, 2012, and separated eight months later in June, 2013, would not have had much, if anything, to fight about.  But Joey was the center of their world.  He was purchased by the plaintiff Shannon Travis before the parties were married so she claimed that Joey was her separate property.  However, the defendant Trisha Murray, claimed that Joey had been given to her as a gift to compensate for losing her cat.  With this gift having been made before marriage, she too had a claim that Joey was separate property.

Brooklyn Family Court recently played host to a mother’s nightmare when questionable family photos became the subject of a child abuse case brought against her and her husband.  Luckily for this “loving and attentive mother” in Matter of CW v. CYR the Court ultimately dismissed the petition and found only that Mrs. R “uses technology to obsessively record her children’s lives and did not realize that not everything needs to be memorialized.”  It could have been far worse.  Had the Court found, among the thousands of family photos that had been stored in the husband’s blackberry (lost, then found by a passerby who turned it in to the police), that the few nude photos of the youngest child were obscene, the couple could have lost custody of their four children and faced criminal charges, to boot. What was she thinking(?) is easy to say in hindsight, of course.  As many people today are prone, Mom used her camera phone to record her everyday life, and to convey information in text messaging.  So, when her 4 year old daughter confounded her one night by ending up without clothes after having been put to bed in a nightgown and underwear, Mom took a photo of her while sleeping and posted it with a text to her sister and husband, asking them if they thought this was normal.  Other photos of this child with other children in and out of the bath were no doubt meant to record innocent moments. Predictably, “innocent” was not how the Administration for Children’s Services saw things.  A police search was conducted of their home, their home computer was seized, and the children were removed from their custody pending a hearing. Children are deemed neglected if placed in imminent risk of harm to their physical or emotional well being.   Child abuse is worse, and is not limited to situations in which actual physical harm is inflicted. Under New York law, parents who commit a crime aimed at their children are deemed to have abused the child, even where physical harm did not occur. The parents in Matter of CW were charged with abusing their children based on alleged violations of Penal Law section 263 which prohibit obscene sexual performance by a child.  For the depiction of the child to be an obscene sexual performance, it must, at a minimum, involve a “lewd exhibition of the genitals.”  Given what the photos displayed, the only question for the court was whether the photos were “lewd.” Thankfully, no.  A careful review of the caselaw led the Court to conclude that, because the children had not been posed, and there was evidently no intent to elicit a sexual response in the viewer, the photos were not lewd.  It helped that a physical examination of the children showed no signs of trauma, and that the children were well-adjusted, happy kids.  Their pediatrician even remarked that the family was “one of the most normal, high functioning families in his practice.” Which begs the question, again --- what was she thinking?  In Court, Mom testified that the photos “were in bad taste.”  Bad judgment, more like.  But the Court remained charitable in its assessment, concluding that “any parent knows that you cannot raise a child without making mistakes in judgment from time to time.  And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life.” If nothing else, this case points out the dangers of sharing too much.  There is no getting around the fact that children will do the damnedest things, but not everything needs to be compulsively recorded and shared.

Just as not every marriage ends in divorce, not every relationship ends in marriage.  For those unrestrained by a state contract but left empty-handed, there is some consolation if an alternative agreement was made.  As the recent decision of the Appellate Division of the New York State Supreme Court in Dee v. Rakower (11/13/13) shows, even an oral contract can suffice to entitle a cohabitant to share in the value of retirement benefits earned during the relationship. In the Dee case, the parties cohabitated as an unmarried same-sex couple for 18 years and had two children, each adopting a child born to the other. Because they were unmarried, plaintiff Dee, who had stayed home to raise their children and had no retirement benefits, could not proceed under the equitable distribution law (which serves to grant the non-titled spouse an interest in the other’s assets) to claim a portion of her former partner’s pension. Fortunately, she was not without a remedy.  When they broke up, Dee sued for breach of contract, alleging that she had quit her full time job that offered a retirement plan when the parties agreed that she would work part time and stay home with their children.  She further alleged that defendant Rakower agreed to contribute financially, supporting the household and sharing the retirement contributions she accumulated during the time that the plaintiff lacked a retirement plan of her own. Despite the favorable decision from the Appellate Division, the Dee case does not yet represent a victory for the plaintiff, since the appellate ruling was not a final order.  It reversed the lower court’s dismissal order, and sent the case back down to the trial court with instructions for it to go to trial.  Of course, Dee could yet lose at trial, which is a significant risk, since the alleged agreement is an oral agreement, the proof of which will largely depend on the parties’ credibility at trial. But regardless of the ultimate outcome for plaintiff Dee, the case represents a huge victory for all unmarried individuals who dedicate their lives to raising a family.  Straight or gay, a couple that embarks upon an economic partnership where one of the partners promises a benefit to the other (i.e. raising his/her children) and/or, based on a promise, suffers some detriment (i.e., quits a job with a pension) has entered into a legally binding contract even if it was never written down.  It should go without saying that a written contract is preferred, but at least there is some remedy in cases without one.  This is particularly important for gay and lesbian couples who now, in the wake of the Marriage Equality Act, are able to get married, but who may have lived together for many years with nothing more than a promise to “share and share alike.”  At least now those years are not lost, and promises made can be enforced.