Order of Protection Thrown Out

father's rights attorneyThe Appellate Division of the Second Department (an appeals court) in the State of New York recently vacated an order of protection obtained by a wife against her husband. The court ruled that the alleged disorderly conduct which took place inside the parties’ home did not sufficiently prove that the husband engaged in disorderly conduct which was intended to cause, or recklessly create, a risk of causing public inconvenience, annoyance or alarm.

The Story

Mr. and Mrs. Cassie were not getting along. Mrs. Cassie decided one day to pack up her husband’s bags and change the locks to the house. Mr. Cassie came home from work and found he could not get into his house. At some point one of his children let him in. Mr. and Mrs. Cassie had two daughters aged 16 and 17.

An argument ensued on the second floor of the parties’ home while the children were watching TV. Mrs. Cassie called the police alleging her husband had assaulted her. Mr. Cassie denied that he had assaulted her. He voluntarily left the marital residence.

Mrs. Cassie went to the Brooklyn Family Court. She obtained an Order of Protection based on a decision by Judge Anthony Cannataro that determined that Mr. Cassie had committed the family offense of disorderly conduct.

Mr. Cassie appealed.

The Appeal

In his appeal, Mr. Cassie claimed his wife did not make out a prima facie case for disorderly conduct. The Appellate Court agreed. The decision of the Appellate Division was that the disorderly conduct had to have some sort of public inconvenience, annoyance or alarm. Since this event took place in the family’s home, there was no reckless disregard that might cause public harm. The court found Mrs. Cassie did not prove her case.

The Appellate Court overruled the family court decision and allowed Mr. Cassie back into his house.

About the Author

assistance for fathersElliot Schlissel, Esq. is a father’s rights attorney practicing throughout the metropolitan New York area.

Custody Proceedings – Cross Examination Of Forensic Experts

father's rights lawyersIn custody proceedings, in the Family Courts and Supreme Courts of New York State, the Judge will often order the parties, the child or children and the significant others of the parties be interviewed by forensic experts. Thereafter, the forensic expert usually issues a written report. Should the case go to trial, the forensic expert will testify at trial with regard to the material in his or her report.

Neutral Forensic Experts

            The forensic reports of neutral experts are submitted to the Court. The attorneys for the parties are entitled to review the reports. In most instances the attorneys are not allowed to provide a copy of the report to their clients. The attorneys usually take notes as to what is in the report and utilize their notes with regard to the examination and cross examination of the forensic expert at the time of trial.

Forensic Expert Reports And Individuals Representing Themselves

            What happens if the individual in the custody dispute represents himself or herself?   In these situations shouldn’t the individual representing him or herself be given access to the report so he or she will be on equal standing as the attorney for the other party with regard to the testimony of the expert at the trial?

In a recent case before an Appeals Court (the Appellate division of the First Department) entitled Sonbuchner v. Sonbuchner, the issue of individuals representing themselves and having access to forensic expert reports was dealt with. The case involved the mother trying to relocate her child from New York to North Carolina. The father objected to the relocation claiming it would have a negative impact on his parenting time with the child. A forensic report was prepared. The father sought to review the report. His request was denied.  The case went to trial and the mother won.

The father appealed claiming that he should have been given access to the forensic report which the Court accepted into evidence.  The Appellate Division found the trial court had made an error in not allowing the father to review his report. However, they found this was “harmless error.” How could this be harmless error?

Fairness Requires Equal Access to Forensic Expert Reports

            Litigants should have equal access to all material that impacts their case. In this case, the father representing himself was forced to try his case at a disadvantage. The other attorney was fully cognizant of the material in the expert report prior to it being presented into evidence. He was not.

Due Process Denied

            Justice David Saxe, who had a dissenting opinion on this case, stated “expert reports by mental health professionals are an important element at trial of custody litigation. The procedure typically employed by the New York trial courts in recent years is to provide a copy of the expert’s report to the attorneys, with the direction that the copies are not to be provided to their clients or others outside the litigation team.”  The Judge went on to write in the event a litigant is self-represented, a copy of the report should be maintained at the Courthouse and provided to the litigant. The dissenting opinion was correct and the majority opinion was wrong.

About the Attorney

            Elliot S. Schlissel is a fathers’ rights lawyer representing fathers in child custody, visitation, child support, relocation cases and all other issues involving father’s parental rights. He has been practicing law for more than 34 years.divorce assistance for fathers

Mother’s Relocation Of Children Denied

father's rights attorneyIn a case in Monroe County, Supreme Court, Justice Dollinger took into consideration the preference of two boys, 11 and 14 years of age, in making a decision to allow them to stay in Rochester with their father. Their mother had brought an application to the Court to relocate the children to Washington DC. She had recently received a new position as an assistant dean at Howard University. The Judge, in his decision, stated “that consistency of their preference and the sound basis for it – it is undisputed they have friends, opportunity, activities, and substantial academic success in Rochester – requires that this Court ascribe some significant weight to their choice.”

Court Didn’t Want To Move Children From A Strong Environment

The Judge in his opinion also stated “it is undisputed the sons are thriving in Monroe County.” Both excel in academic performance; both are heavily involved in activities from Lego robotics, to boy scouts, music, religious instruction and other activities. Neither parent could cite a single example in which the two sons have not achieved substantial success in their home community.  Both boys had expressed their wishes to remain in Rochester. The Court found both the father and mother were excellent parents.  The Court took into consideration the relationship between both the custodial and non-custodial parent.  The Court looked at the degree to which the children’s lives might be enhanced by the move. The Court also took into consideration preserving the custodial relationship between the mother and the children concerning the move. The mother argued for continuing her custodial relationship with the children and that the move to Washington would provide them with cultural and academic opportunities.

Father’s Rights Protected

The father promised to keep the sons involved in the activities in the locality in Rochester, attend the same church and maintain a relationship with their friends. The court, in its decision, stated “in this Court’s judgment, the relocation to Washington, DC would impact the quality of the visitation as well as the casual, easygoing quality described by the father as the interaction with his sons.”  The Judge further wrote “if the father were required to visit his sons in Washington, there is no evidence as to how he would achieve reasonable visitation while staying in a hotel, for example. Based on these factors the quantity and quality of the father’s visitation will be substantially impacted by the relocation.”

It should be noted the sons, prior to the relocation, lived with the mother and the father had visitation on alternative weekends and two evenings a week.

This is a victory for fathers’ rights advocates!father's rights advocates on long island