How to Impeach a Custody Evaluator
March 30, 2005
Because the custody evaluator comes to court as an expert witness, he or she may be impeached by the published writings of other professionals in his or her field. <i>People v. Feldman</i>, 299 NY 153, 85 NE2d 913 (1949). Once a proper foundation is laid, passages that contradict the testimony may be read and the witness asked whether he or she agrees or disagrees with those statements. When used in such fashion, the content of the statement put to the witness does not become evidence in the case, but is allowed only to discredit or weaken his or her testimony by showing that learned writers in the field have expressed contrary views. This article uses New York rules of procedure to explore the evidentiary doctrine and trial techniques pertaining to impeachment by treatise when confronting the testimony of a custody evaluator.
The Out-of-State Dissolution of Civil Unions
March 30, 2005
Can the subject matter jurisdiction of a family court extend beyond divorce and annulment into the broader realm of dissolution of the family? Does a family court have equity jurisdiction to dissolve a Vermont civil union and to adjudicate the division of property and ancillary economic claims? Does an out-of-state family court have jurisdiction to dissolve a Vermont civil union based on its power to enforce contracts and to adjudicate contractual disputes, including express or implied contracts between unmarried cohabitants? How does a state's version of the Defense of Marriage Act (referred to as a mini or junior-DOMA) factor into this analysis, if at all? Family lawyers are closely monitoring an emerging body of case law that seeks to answer some of these questions. In all likelihood, at some point in 2005, a state's highest court will weigh in on these issues, and that decision may potentially affect the degree to which family lawyers will succeed in securing out-of-state decrees on behalf of clients seeking to dissolve Vermont civil unions.
Court Unmoved By Claim Against Matrimonial Lawyer
February 25, 2005
Matrimonial attorneys in California are breathing a sigh of relief. Even though divorce may be the most blood-boiling experience a person can go through, a California appellate court ruled that a client cannot sue his attorney just because the proceedings threw his life into turmoil.
The Progressive Lawyer
February 25, 2005
The <i>pendente lite</i> phase of a case and the results of a <i>pendente lite</i> application are critical for setting the tone for the balance of the case, and often affect whatever final decisions or agreements are reached. An inequitable result could seriously compromise one party's case. It is, therefore, essential to provide judges with sound, hard evidence at the <i>pendente lite</i> phase, that will enable them to deal fairly with both sides pending the submission of final proofs.
Litigation
February 25, 2005
Recent rulings of importance to you and your practice.
Avoiding Alimony Tax Pitfalls
February 25, 2005
The purpose of making payments to a spouse or former spouse as alimony under the Internal Revenue Code (the Code) is so that such payments will be taxable to the payee and deductible to the payor. This article reviews the rules and the pitfalls.
A New Era of Family Law '50/50 Custody' - What Does It Mean?
February 25, 2005
A movement by fathers' groups and their current wives to have every state legislature mandate a presumption of 50/50 custody for all children as a starting point in every contested custody case has created a new area of family law. If you inquire about the rationale behind this movement, the groups will respond that they have a constitutional right to raise their children and, further, that this presumption will alleviate all custody problems. Further, they say, the "best interest of the child" standard is bogus and is just used to deprive fit parents of their rights. Other arguments made by these dads include: the criteria used to award custody are unconstitutionally vague; there are no scientific data to support the continued use of the "best interests" standard, and the standards are arbitrarily utilized. If the legislatures would only mandate a presumption of 50/50 custody at the outset, these groups claim, there would be no interparental conflict, no wasting of family resources, and no shattered lives.
Family Trust Planning: Back to Basics
January 26, 2005
While many clients establish trusts and execute estate plans to eliminate or reduce the estate tax burden of their estates, there are non-tax benefits to creating trusts that are especially relevant to the clients of family lawyers. With the possibility of estate tax repeal on the horizon, the timing is right to focus on these non-tax benefits and remind ourselves and our clients of the valuable protections and control available through the use of trusts. Regardless of whether or not the federal estate tax is permanently repealed, the possibility of such repeal allows us to put aside many of the complexities of tax planning and focus on the key family issues and concerns that motivate clients to initiate trust planning.
Supreme Court Discusses Gay Adoption Rights
January 26, 2005
The Supreme Court considered gay rights at the justices' first private conference of the new year on Jan. 7. The Florida gay adoption case, <i>Lofton v. Secretary of the Florida Department of Children and Families</i>, is one of dozens of cases the Court discussed at its conference with an eye toward granting or denying review.
Litigation
January 26, 2005
Recent rulings of interest to you and your practice.
