Decisions of Interest

The decision was based on biology, statutory and case law concerning reproductive rights and Domestic Relations Law ' 236, which defines marital property as that property acquired by either or both spouses during the marriage. Of some interest was just how the fetus was created by the mother's egg and the father's sperm. “The [mother] clearly owned, prior to the marriage, the egg from which the fetus developed,” Duggan wrote. “On the other hand, the [father] impregnated the petitioner with sperm he acquired after the marriage.” Still, the judge observed that the mother “was both impregnated by the respondent and she miscarried during the marriage.”

Next, the court looked to New York's law on miscarriages and stillbirth. New York's Public Health Law (PHL) ' 4160 (1) defines a fetal death as “death prior to the complete expulsion or extraction from its mother of a product of conception; the death is indicated by the fact that after separation, the fetus does not breathe or show any other evidence of life such a beating of the heart, pulsation of the umbilical chord, or definite movement of the voluntary muscles.” A fetal death requires the issuance of a fetal death certificate pursuant to PHL ' 4160 (2). PHL ' 4160-a (7) defines a “still birth” as the “unintended intrauterine death of a fetus that occurs after the clinical estimate of the twentieth week of gestation.” According to the statute, the “parents” may request a certificate of still birth to be. No such request was made by the parties. Further, PHL ' 4160 (5) states that disclosure of the information filed pursuant to fetal death registrations “shall be limited to the mother [and] her lawful representative.” According to Judge Duggan, “This would apparently exclude a putative father or husband, absent the mother's consent.”

The court concluded that because the fetus and the ashes that it became were never a live a person, they were property ' property that was not separate because it was acquired during the marriage. The deciding factor in this case thus became New York's law on reproductive rights. “Unless legislated otherwise, the public policy of this State would lead to a conclusion that fetal remains, in whatever form, are separate property,” Duggan wrote. “That public policy is found in the statutory and common law of reproductive rights in this state. That law gives to the woman full control over the progress and outcome of her pregnancy without veto power by a husband or putative father.” Judge Duggan noted that a woman could confer a property interest in fetal remains to her husband, but that if she clearly had not done so, “the ashes of her stillborn birth should be presumed to be her separate property.” In this case, the woman had filed criminal harassment charges against her husband for taking the ashes from her, indicating that she had no intention of giving him a property interest in the remains of the fetus.

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Move Would Benefit Mother More Than Child

A father has won his appeal of a Family Court decision granting the mother's request to be permitted to move to South Africa over his objections, as the benefits to the child do not outweigh the harm the move would do to her relationship with her father. Matter of Francis-Miller v. Miller, 2013-05894 (2d Dept. 11/6/13).

The mother had previously been granted residential custody of the couple's child, but the father had visitation rights two days per week, which he consistently exercised. Allegedly, the father had attempted suicide in the past in the presence of the mother and child. The mother sought permission from the Rockland County Family Court to move with her four-year-old daughter to the mother's native country, South Africa. She testified that she could live there with her daughter rent-free in her parents' home, that she could work in her parents' business, and that that her parents would provide her with free child care.

The attorney for the child supported the move. Family Court granted permission for the move, but the Second Department reversed on appeal, finding that the reason for the move was more about the mother's wish to be at home with family, rather than any economic need or fear of abusive behavior by the father. In fact, the court-appointed psychologist testified that the father was now mentally stable and appeared to pose no threat to the child. Looking at the reasons in favor of the move, the court determined that they could “not outweigh the drastic reduction in the quantity and quality of the child's contacts with the father which would ensue if the child relocated to a country so distant from the United States that, according to the parties, it requires a 24-hour-long flight to reach.”'

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Limits Placed on Data CASAs May Access

The Appellate Division, Third Department, has held that an Ulster County Court Appointed Special Advocate (CASA) may not access certain confidential information about the children he is appointed to help, as giving such access absent the consent of the children, the attorney for the children and the parents would violate the Health Insurance Portability and Accountability Act (HIPAA) and the state Mental Hygiene Law '33.13(c), which controls the release of mental-health information contained in foster-care records. Matter of Evan E., 516055, NYLJ 1202635183551, at *1 (3d Dept. 12/26/13) (Rose, J.P., Spain, Garry and Egan Jr., JJ.).

Under this ruling, information contained in the state's registry of abused or neglected children and information about the mental-health services the children receive while in foster care may be given to the CASA only after the requisite consent is obtained. The appellate court also held that courts may not order that CASA volunteers be allowed to attend family service plan meetings that concern a foster child's permanent placement.

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Remains of Fetus Belong to the Mother

In an unusual case, acting Supreme Court Justice W. Dennis Duggan has declared that the cremated remains of a stillborn fetus belong solely to its mother, the biological father having no parental rights until after the birth of a viable child; therefore, the mother's husband was not entitled to obtain half of the ashes as a marital property distribution. Jackson v. Jackson, 2013 N.Y. Misc. LEXIS 6047 (Sup. Ct., Albany Cty. 12/30/13) (Duggan, F.C.J.).

The couple had only a brief marriage, during which they conceived a child that was stillborn at 26 weeks gestation. They separated shortly thereafter, and the question of who should keep the cremated remains of the stillborn child arose. The mother testified that the father had threatened to flush the remains down the toilet. She was willing to share certain memorabilia of the birth, such as photographs and footprints, but wanted the ashes declared hers alone. The father testified that he might have said some rash things due to stresses such as the loss of his marriage and of his job, but that he had no actual intention of desecrating the memory of his child by vandalizing the remains.

The decision was based on biology, statutory and case law concerning reproductive rights and Domestic Relations Law ' 236, which defines marital property as that property acquired by either or both spouses during the marriage. Of some interest was just how the fetus was created by the mother's egg and the father's sperm. “The [mother] clearly owned, prior to the marriage, the egg from which the fetus developed,” Duggan wrote. “On the other hand, the [father] impregnated the petitioner with sperm he acquired after the marriage.” Still, the judge observed that the mother “was both impregnated by the respondent and she miscarried during the marriage.”

Next, the court looked to New York's law on miscarriages and stillbirth. New York's Public Health Law (PHL) ' 4160 (1) defines a fetal death as “death prior to the complete expulsion or extraction from its mother of a product of conception; the death is indicated by the fact that after separation, the fetus does not breathe or show any other evidence of life such a beating of the heart, pulsation of the umbilical chord, or definite movement of the voluntary muscles.” A fetal death requires the issuance of a fetal death certificate pursuant to PHL ' 4160 (2). PHL ' 4160-a (7) defines a “still birth” as the “unintended intrauterine death of a fetus that occurs after the clinical estimate of the twentieth week of gestation.” According to the statute, the “parents” may request a certificate of still birth to be. No such request was made by the parties. Further, PHL ' 4160 (5) states that disclosure of the information filed pursuant to fetal death registrations “shall be limited to the mother [and] her lawful representative.” According to Judge Duggan, “This would apparently exclude a putative father or husband, absent the mother's consent.”

The court concluded that because the fetus and the ashes that it became were never a live a person, they were property ' property that was not separate because it was acquired during the marriage. The deciding factor in this case thus became New York's law on reproductive rights. “Unless legislated otherwise, the public policy of this State would lead to a conclusion that fetal remains, in whatever form, are separate property,” Duggan wrote. “That public policy is found in the statutory and common law of reproductive rights in this state. That law gives to the woman full control over the progress and outcome of her pregnancy without veto power by a husband or putative father.” Judge Duggan noted that a woman could confer a property interest in fetal remains to her husband, but that if she clearly had not done so, “the ashes of her stillborn birth should be presumed to be her separate property.” In this case, the woman had filed criminal harassment charges against her husband for taking the ashes from her, indicating that she had no intention of giving him a property interest in the remains of the fetus.

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Move Would Benefit Mother More Than Child

A father has won his appeal of a Family Court decision granting the mother's request to be permitted to move to South Africa over his objections, as the benefits to the child do not outweigh the harm the move would do to her relationship with her father. Matter of Francis-Miller v. Miller, 2013-05894 (2d Dept. 11/6/13).

The mother had previously been granted residential custody of the couple's child, but the father had visitation rights two days per week, which he consistently exercised. Allegedly, the father had attempted suicide in the past in the presence of the mother and child. The mother sought permission from the Rockland County Family Court to move with her four-year-old daughter to the mother's native country, South Africa. She testified that she could live there with her daughter rent-free in her parents' home, that she could work in her parents' business, and that that her parents would provide her with free child care.

The attorney for the child supported the move. Family Court granted permission for the move, but the Second Department reversed on appeal, finding that the reason for the move was more about the mother's wish to be at home with family, rather than any economic need or fear of abusive behavior by the father. In fact, the court-appointed psychologist testified that the father was now mentally stable and appeared to pose no threat to the child. Looking at the reasons in favor of the move, the court determined that they could “not outweigh the drastic reduction in the quantity and quality of the child's contacts with the father which would ensue if the child relocated to a country so distant from the United States that, according to the parties, it requires a 24-hour-long flight to reach.”'

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Limits Placed on Data CASAs May Access

The Appellate Division, Third Department, has held that an Ulster County Court Appointed Special Advocate (CASA) may not access certain confidential information about the children he is appointed to help, as giving such access absent the consent of the children, the attorney for the children and the parents would violate the Health Insurance Portability and Accountability Act (HIPAA) and the state Mental Hygiene Law '33.13(c), which controls the release of mental-health information contained in foster-care records. Matter of Evan E., 516055, NYLJ 1202635183551, at *1 (3d Dept. 12/26/13) (Rose, J.P., Spain, Garry and Egan Jr., JJ.).

Under this ruling, information contained in the state's registry of abused or neglected children and information about the mental-health services the children receive while in foster care may be given to the CASA only after the requisite consent is obtained. The appellate court also held that courts may not order that CASA volunteers be allowed to attend family service plan meetings that concern a foster child's permanent placement.

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