Parental Abductions
July 27, 2005
The Hague Convention on the Civil Aspects of International Child Abduction (the Hague Convention) provides that a child who is habitually resident in one party country, and has been removed to or retained in another party country in violation of the left-behind parent's custodial rights, should be promptly returned to the country of habitual residence. However, many countries are not parties to the Convention, and even some that are parties enforce the laws only sporadically or in accordance with their own societal customs. Thus, the attorney must take special care when faced with the possibility that his client's foreign national spouse might take the children to such a country.
Grandparent Custody
July 27, 2005
In last month's newsletter, we explored the state of the law on grandparent custody of children prior to the amendments to FCA ' 651(b) and DRL ' 72(2)(a) (b) (c), which codified jurisdiction to hear and determine petitions filed by grandparents for custody of their grandchildren. The amendments, which went into effect on Jan. 5, 2004, appeared to change the law to make it easier for grandparents to gain or keep custody of grandchildren. The leading case law previous to the amendments could be found in <i>Matter of Bennett v. Jeffreys</i>, 40 NY 2d 543, 387 NYS 2d 821, 356 NE 2d 277 (1976), in which the Court of Appeals held that a parent has a superior right to custody over a nonparent unless the nonparent meets the burden of proving "extraordinary circumstances." Once such extraordinary circumstances are shown, a court may then move on to consider custody in light of the best interests of the children. After the amendments went into effect, the question became, did those amendments substantially change the law for grandparents seeking custody?
Enhanced Earnings Capacity
July 27, 2005
Two recent cases in our office have highlighted the legal and procedural conundrums occasioned by parties residing in different states at the time divorce proceedings are commenced, where one of the spouses earned a medical degree and obtained medical licenses and board certifications (ie, enhanced earning capacity) during the course of the marriage. As most readers of this publication are surely aware, New York is the only major jurisdiction in our nation to value enhanced earning capacity for purposes of equitable distribution. Thus, whether the case is litigated in New York or in a different state can have a marked effect on the outcome of the financial aspects of the case, to the tune of hundreds of thousands of dollars, if not more.
New Jersey Appellate Court Rejects Marriage Equality
July 27, 2005
The New Jersey Superior Court Appellate Division rendered a decision in the appeal of <i>Lewis v. Harris</i>, 378 N.J.Super. 168, 875 A.2d. 259 (App.Div.2005) that the "statutory limitation of marriage to members of the opposite sex does not violate the New Jersey Constitution." Although disappointing, the 2-1 decision was not unexpected and, because there is a dissenting opinion, under New Jersey Rules of Court there is an automatic right of appeal to the New Jersey Supreme Court. The notice of appeal has been filed, and as of this writing the parties awaited a briefing schedule.
Fast Track for California Gay Marriage Ruling
July 27, 2005
When the California attorney general asked the state Supreme Court on July 1 to immediately take up the issue of gay marriage rather than wait for the appeals process to play out, some of his courtroom opponents got on board with the idea.
Board of Immigration Appeals Break Rank
July 27, 2005
In a rather startling postscript to the two-part story on the marriage rights of transgendered persons that ran in the June and July issues of this newsletter, we now have this to report: A branch of the federal government has declared valid for the purpose of recognition of immigration status the marriage of a female-to-male postoperative transsexual to a woman.
Custody for Same-Sex Couples
July 27, 2005
Almost 15 years ago, the California Court of Appeal became the first appellate court in the country to rule on a custody dispute between a lesbian couple. Although the petitioner in that case had jointly participated with her partner in the decision to bring a child into the world and had assumed all of the duties and responsibilities of a parent after the child's birth, the court held that she did not have standing even to seek visitation with her children -- that she was a legal stranger to them.
The Ethics Of Embryonic Stem Cell Research
July 06, 2005
The discussion of stem cell research seems to touch all the bases - religious, legal, ethical, financial and scientific. With such a disparate range of views and contentions, along with the federal government's abdication of any sort of leadership role, it will be difficult and take a great deal of time, energy, emotion and dollars, to reach a consensus view.
Another View
July 06, 2005
Human stem cell research is complex. Do law and ethics address it the same way? Since the answer is emphatically "no," count on rapid and interesting developments in law and ethics, as the two approaches alternately converge and clash.
