The Polish Holocaust Law

 

The Polish Holocaust Law

By Sherri Donovan, Esq.

Polish Holocaust Law.shoes - Copy.jpg

I took a trip to Poland and Hungary in March, 2018 to investigate the recent Polish Holocaust law. My grandparents, great grandparents and great-great grandparents were from Poland, Russia, and other parts of Eastern Europe. My paternal grandfather was a socialist Rabbi in Brooklyn when he was sent down south to Georgia during WWII. He stated publicly, “We can’t just fight fascism abroad, we have to fight it right here”. His statement is as relevant and inspirational today in the U.S. and globally to be vigilant for human rights. It is because of Grandpa Gus, whom I never met (he died when my father was seven), reading Clarence Darrow’s autobiography at age eleven, and late night political discussions with my father on middle school nights that I became a lawyer and believe in human rights for immigrants, refugees, Palestinians and journalists, as well as an advocate against racism and genocide.

My maternal grandmother, grandma Rae, originally Rachael Kaplan, grew up in Stolin, a village in Poland, which then became part of Russian and is now in Belarus. Her father, a scientist, was the only known person wearing a yarmulke at Vilna University. Jews were not permitted but my great grandpa was permitted to stay because he was at the top of his class in Math and Science and thus was asked to tutor the Dean’s son.

Grandma Rae, known in her New York high school as the “smart green horn” came to the U.S. via the Statue of Liberty when she was twelve. At first not knowing English, only Yiddish and Polish, a black umbrella was placed outside the window of great-great grandma Fae’s rental apartment at 155 Houston Street, so my Grandma Rae and her parents could find their way home. It is because of my grandma Rae, I learned to giggle and live in the moment. My great- great grandma Fae (whom my middle name is from) lived to over 103 and was still carrying heavy barrels from the basement of her delicatessen at the age of 92!

In February 2018, Polish President Andrzej Duda signed legislation into law that criminalized any attribution to the Polish state or nation of complicity in the Holocaust and Nazi crimes by the German Third Reich. The new provisions also prohibited the use of the terms “Polish death camps” or “Polish concentration camps”. The law is broad and punitive. The sanctions included up to three years of imprisonment to anyone, whether in Poland or globally, who attributes responsibility or co-responsibility to the Polish nation or state for the Holocaust or crimes against peace. The bill has sweeping language including “whoever claims publicly and contrary to the facts,” and “distorting the historical truth about the Polish people and state.” There is an exception to the law for scientific or artististic activity. The amendments are contained in Article 55(a) of the existing Act on the Institute of National Remembrance. To make matters worse, the law was adopted by the lower house of the parliament on the eve of the Holocaust Remembrance Day on January 27th. Law Professor Arthur Nowak-Far at the Warsaw School of Economics pointed out that the law did not define elements of a crime and thus, should be struck down.

The far right Polish President Duda and his party, the Law and Justice Party (PiS) has been targeting immigrants, and inflaming xenophobia. They have also been threatening democracy by controlling the national media and the courts. The Constitutional Tribunal of Poland is required to verify the new law, however, the independence of the Constitutional Tribunal is highly questionable. In December 2017, the European Commission initiated proceedings against the Polish Government for violating Article 7 of the European Treaty. Article 7 protects common European values and institutions of democracy and respect for the law. This was the first time, Article 7 has been triggered since its inception in 1999. European Commission’s Vice President Timmerman declared that Poland’s presiding PiS headed by Jarosław Kaczyński had adopted thirteen laws in the last two years that permits systematic interference with the composition, powers, and functionality of the judiciary. The PiS came to power in 2015.

Germany, which has been a leader in teaching tolerance and the holocaust in their schools and museums, was the first country in the 1980’s to criminalize Holocaust denial. The European Union and individual European countries have since adopted provisions against genocide denial to build trust among nations and promote humanity without hate. The new provisions in the Polish law and Amendment of Article 55 are not consistent with the memory measures described above. As PHD Senior Researcher, Uladzislau Belavusau in The Hague has perceptively analyzed, the new Polish law is more analogous with Turkish and Russian penal codes. In the Turkish Criminal Code (301) denigration of the Turkish nation is outlawed and is intended to silence speech against the Armenian genocide and other minorities by the Ottoman Empire in 1915. In 2014, under Putin, a criminal code, Article 354 was enacted prescribing a fine or exactly up to three years of imprisonment, as the Polish law does, for disseminating false information about the Soviet Union’s actions during WWII. The law sought to inhibit recent bloggers and liberal groups, as well as to rehabilitate Stalin’s name. State officials are subject to stricter penalties.

The new Polish law permits NGO’s, as well as prosecutors to file lawsuits against those who attack the historical dignity and national reputation of Poland.   The first lawsuit was filed by the Polish League Against Defamation against an Argentinian newspaper, Pagina 12 and journalist Frederico Pavolsky, for a story and photo that was published two months before the law came into effect. The Polish League Against National Defamation is close to the ruling party and collected tens of thousands of signatures to pass the new Holocaust law.

There were mass street protests in Warsaw and other cities against the erosion of the independence of the courts in 2016 and 2017. In 2018, there were urban mass protests against the rise of racism, anti-semitism and a further tightening of Poland’s already restrictive abortion law.

The first attempt at the new holocaust legislation occurred in 2000. The Polish parliament penalized “defamation of the Polish Nation” and entitled it, “Lex Gross”. Jan Tomasz Gross published a book immediately before the proposed legislation entitled “The Neighbors” about the well-documented Jedwabne pogrom. The book documents the history of a village in 1941 where Jews were forcefully collected and burned to death in a barn. “Lex Gross” was struck down by the Polish Constitutional Tribunal not on a violation of free speech but a technicality.

In an open letter to the current Parliament, a letter was written on behalf of Polish Jews by Jan Gebert that there was a serious concern that the new provisions would criminalize giving testimony about non-Jewish Poles who extorted or murdered Jews. Worldwide reactions expressed grave concerns about stifling academic inquiry. A prominent Polish Jewish journalist Kon Stanty Gebert tested the law and challenged prosecutors using the outlawed language in an article. Mr. Gebert published in the The Polish Daily in March, 2018, that members of the Polish nation bear co-responsibility for collusion with the Third Reich in massacres like Jedwabne, and that the Polish nation committed a crime against peace when it participated with the Soviets in the 1968 occupation of Czechoslovakia.

On my tour of the Jewish ghetto in Krakow, named Kazimierz, I questioned my guide about the new law. He stated that his good friend, a non-Jewish Pole was working for years with the religious community in Krakow and building awareness, sensitivity and cultural exchange between the non-Jewish and Jewish sectors of Krakow. His friend stated that with the introduction of this new law, dialogue has disastrously disappeared. In 2013, the Polish Museum of Polish Jews in Warsaw opened and had successfully focused on dialogue and reconciliation. The new holocaust law disrupted this progress.

On my tour of the Auschwitz and Birkenau concentration camps, I asked the guide about the new holocaust law. Silence. Her lips closed tight like the shells of a clam. She said, “I can’t talk about that.” I asked her privately, “Is it the government, your employer or your choice?” No response by the young woman. I said, “How can you do a tour about the Holocaust and not at least explain the new law?” The young guide then turned to a colleague, an older Polish woman who did not speak English. I understood of her response, one word “controversial”. In translation, the younger guide interpreted for the more experienced guide and said, “I agree with the first part of the law about prohibiting the term “Polish death camps” but not the rest of the law.”   I was shown by these guides the Auschwitz cell of the monk, Maximillian, who gave his life in replacement for another Auschwitz prisoner who had a family. The cell had a cross and fresh flowers in it.

Three million non-Jews in Poland also lost their lives under Nazi occupation. I was at the University in Krakow where Copernicus attended, and where Polish professors were once called for a beginning of the year meeting and then shot dead by the Nazis.   Poland has a long and early history of being invaded from Germany, Russia, Prussia, the Austrian Habsburg Monarchy, and even the Swedes and Mongols. A national identity has been fragile and thus important to the Polish people. The reality and myth of being the victim exists. A Polish underground State was established in 1939 by the Polish government in exile in London. Some Poles, like the only non-Jewish person in the Krakow ghetto, a chemist who ran a pharmacy, helped and hid Jews at the risk of death. Thousands of Poles concealed and aided their Jewish neighbors. The citizens of Poland have the world’s highest count of individuals recognized by Yad Vashem in Jerusalem for saving Jews from extermination. The 6,706 Polish women and men are recognized as the Polish Righteous Among the Nations which is over 25% of the 26,513 awarded globally. There were also organized networks of Polish resistance committed to protecting Jews.

As Hungarian Professor Miklos Molnar discussed with me in Budapest, the Polish as the Hungarians were victims and collaborators with the German Nazis. They were both. The Professor also lamented about his government’s extremist policies and gerrymandering. Viktor Orban was re-elected for a third time as Prime Minister in April, 2018. He has been in office since 2010. Orban’s party, Fidesz also won two-thirds of the parliament. Budapest is the exception, with 100,000 peaceful protestors taking to the streets a week after the election.

The Organization for Security and Cooperation in Europe, a public watchdog for democracy stated that the Hungarian election used intimidating xenophobic rhetoric and was riddled with media bias. Government paid anti-immigrant posters were placed side by side with campaign posters of liberal philanthropist Soros with a “doctored” longer nose, arm in arm with Orban’s opposition. In the documentary, “Cries From Syria”, one child refugee sadly spoke about being treated like a dog from Hungarian authorities, including being told to drink dirty water from a muddy puddle.

As Ben Helfgott, a survivor of Buchenwald, told BBC, “I was saved by a Pole and I was nearly killed by a Pole. That is my history, it cannot be changed. They can pass a law but it cannot work.” Professor of Polish history, Anita Prazmouwska, at the London School of Economics (my alma mater where I took classes on Eastern Europe and Germany) proclaimed, to the BBC, “This is history as a tool, as a means for a nationalistic government to accuse everyone else of betraying the nation while painting itself as the true carriers of the Polish flag. It is a blunt instrument.”

The law is a product of the embodiment of nationalist and autocratic shifts in the United States and some European governments, including Poland, Hungary and Austria. As New York Times journalist and foreign policy editor, Roger Cohen, wrote in his April 6, 2018 article, “How Democracy Became the Enemy,” “A vigorous counterrevolution against the liberal-democratic orthodoxy of diversity and multiculturalism is underway.” Trump chose Poland for his first major public European speech in 2017. Instead of playing the role of human rights watchdog and being firm with the PiS and Duda about their undemocratic actions, Trump inflamed and empowered the alt-right. He praised the current Polish government and reinforced xenophobia with battle cries to protect borders. Trump’s speech was drafted by Steve Miller, architect of the travel ban. As the Southern Poverty Law Center reported in 2018, hate crimes have increased in the United States more than 20% since Trump’s campaign and presidency. Even in schools across the U.S. there is an epidemic of bigotry. As in Poland and Hungary, Trump has attacked voting rights and the independent press, and undermined the judicial branch of government. He has criticized judges, stacked the courts with far-right ideologues and pardoned Joe Arpaio, the former Arizona Sheriff who was convicted of criminal contempt for refusing to stop profiling Latinos. He has empowered the white supremacist movement by equating neo-Nazis with anti-racists activists after deadly violence against a young woman human rights protestor in Charlottesville, calling African nations “shithole countries” and appointing extremists in the White House.

My grave concerns about Poland’s Holocaust law include, manipulation and inflammation of hate and oppression for political gain, rewriting of history, a deterioration of dialogue and trust between Jews and non-Jews in Poland and globally, discrimination against other vulnerable communities, stifling of inquiry and education, inhibiting democracy and free speech, and setting in motion a destructive model against reconciliation and peace.

Note: Due to international pressure, jail time has been removed from the law for violations.

 

Advertisements
Posted in Uncategorized | Leave a comment

The New Rights of Non-biological Parents

The struggle against discrimination for same sex families and individuals has been a long road. However, changes have been occurring at a quicker pace since 2015 when the U.S. Supreme Court ruled that same-sex marriage is constitutionally legal across the entire United States in Obergefell v. Hodges.

For the last twenty-five years, under a case, entitled Allison D., a parent was only recognized by biology or adoption. Many children suffered and were cut off by a person they called “mommy” and who raised them from birth because that parent did not go through an expensive and time-consuming adoption or did not give physical birth to them.  On August 30th, 2016 the highest court in New York, the Court of Appeals remedied the injury.

In The Matter of Brooke S.B. v. Elizabeth A. C.C, the Court of Appeals in an opinion written by Hon. Abdus-Salaam ruled, “that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law §70.”

Brooke and Elizabeth met and started a relationship in 2006. The following year they moved in together in upstate New York. Brooke gave Elizabeth an engagement ring. It was a symbolic gesture since same sex marriage was not legally recognized at the time. The parties started a family immediately. Elizabeth became pregnant via an anonymous donor in 2008. Brooke was present when their son was born and even cut the umbilical cord. Brooke’s last name was placed on his birth certificate, birth announcements and baptism certificate. Brooke engaged in caretaking and custodial responsibilities including feeding and bathing.

When Brooke and Elizabeth decided to terminate their relationship in 2010, Brooke continued to parent. She had regular and consistent parenting time with her son and he spent major holidays with Brooke and her family. Brooke continued to bring him to medical appointments, his school, and supported him financially. Three years later, Elizabeth ceased contact between Brooke and their son. The Court of Appeals ruled that Brooke had standing to seek custody and visitation. The Court recognized the varied modern families of today and that the old case law was unworkable. It cited numerous social science studies about the damage to children by being cut off from a primary caretaker, also known, as a parent to the child.

Once the criteria according to Brooke S.B., are met there is no limit. Thus, a parent who was previously denied standing for custody and visitation should be able to seek standing now after Brooke S.B. As Judge Piggot of the Court of Appeals pointed out, the previous improper deprivation of a right is a change in circumstances. The change in case law may also be seen as a change in circumstances. Retroactivity is generally applied by the Court of Appeals and lower courts when there is a new interpretation of previously existing law. New York courts broadly construe a new interpretation of an existing rule. The Courts have broad discretion to apply a decision retroactively. There is a trend in New York courts to apply decisions retroactively. In addition, res judicata usually does not apply in custody and visitation cases. Parenting decisions and plans are modifiable in accordance with the best interests of the child.

The Court of Appeals left open for the future, expansion of the definition of parent and recognition of non-biological and non-adoptive families where there is not a pre-conception agreement. Future cases or legislation may provide for a functional definition of a parent based on de facto and psychological factors for post-birth partners.

Posted in Uncategorized | Leave a comment

The Grey Divorce

By: Sherri Donovan

I recently represented “Francine” who wanted a divorce at the age of 91. When I asked why; Francine asserted that the men are cuter in Florida!

Divorce for couples over the age of fifty have been increasing for the past two decades, especially among those couples that are college-educated. The rate of divorce amongst these couples over the age of 50 has risen from one in ten in 1990 to nearly one in four today. Moreover, divorce rates for couples that are age 65 and older have more than doubled in this same period of time. This increase in the rates of the grey divorce can be found for both couples in which a spouse has been previously married and divorced, and for single-marriage couples.

One cause of the increase in divorce for elderly couples over the past two decades include increased education. A better-educated couple has more economic opportunities and increased financial stability, resulting in less stress over their financial future. However, an increase in education has the opposite effect for elderly couples. Economic opportunities due to being better educated generally result in having the financial resources available to be economically independent each other. Thus, it is easier for a spouse to decide to divorce should one not want to remain with the other spouse.

Another factor behind the increased divorce rate for older couples is the changing role of marriage in this society. Marriage was previously seen as a partnership rather than an emotional and economic bond, with each spouse having a role in the relationship (e.g. whether it was keeping the home, being the “breadwinner”, or raising the children.) The current view is of greater expectations within the marriage, particularly of emotional and physical fulfillment. A married couple is expected to be happy with their relationship. Divorce is the primary option should that happiness not exist. Other factors behind the increasing grey divorce rates are the reduced social stigma of divorce, longer lifespans, and introduction of “no-fault” divorce.

The consequences of divorce are unique for an elderly couple.Younger couples have time to recover financially and emotionally from a divorce. However, an older divorced person does not have as much time to reenter the workforce, rebuild their savings, find a new partner, or to engage in proper long-term planning. Thus, older divorcees tend to have only a fifth of the wealth of an older married couples or even older widowers. Older divorced persons can also rely on fewer public benefits, e.g. social security, than other married persons or widowers, making it difficult financially. It is important that an elderly person seeking a divorce, have a team of professionals. A matrimonial lawyer or mediator may need to work closely with an elder care lawyer, a health care manager, and/or a financial advisor. When assets are transferred, the cost of health aides, obtaining government benefits, types of residences available, and distribution of retirement and insurance funds are critical issues in a grey divorce.

An elderly couple contemplating divorce needs to seek advice about spousal support, property division, long-term care, and the role of adult children. Usually a grey divorce involves a long-term marriage. In long-term marriages, spousal support, also called maintenance of alimony, can be awarded if one spouse has more income than the other. Income will include retirement funds that are distributed and received on a regular basis. Social Security income available will be taken into account when considering the differences of income between the spouses. For marriages over twenty years, the New York Domestic Relations Law (Section 236) recommends maintenance (spousal support/alimony) for 30% – 50% of the length of the marriage. However, lifetime maintenance can still be awarded if there is a severe medical or financial need, and resources available.

Adult children may have anxiety and a negative reaction to their divorcing parents which could increase the stress level of the separating elderly couple. Adult children may be worried about who will take care of each parent and feel the burden of creating two households out of one for their parents. Adult children who received financial assistance from their parents, may not be able to depend on the availability of those funds after a divorce. Adult children may also be concerned that a new romantic partner will utilize or be the beneficiary of the family’s assets instead of themselves and grandchildren. Sometimes adult children take the side or come to the rescue of one parent over the other. The grey divorce can trigger psychological family dynamics. A mental health professional may be needed. Seniors divorcing may need and desire to continue to grandparent together. Terms should be negotiated for future grandparenting and attending family functions. In New York State the visitation laws protect grandparents.

Once divorced, many spouses consider finding a new partner or spouse. A pre-nuptial agreement may be strongly advisable to protect funds to provide for long term care and the family’s inheritance. Lastly, a guardian may be needed to make decisions for an elderly divorcing person who suffers from Alzheimer’s or Dementia and is incapable of day to day and/or long term, responsible judgements. With that said it is important that the grey divorce be completed in a matter that provides for the most fulfillment and happiness to each senior involved. It is also important for a senior citizen to update one’s will, power of attorney, and health care declaration at the start of a divorce proceeding. During the process of the division of assets in the grey divorce, one will still be considered married. Thus, the spouse one is divorcing can be entitled to make critical medical and financial decisions if it is not legally stated otherwise. There is precedential case law that if one dies before a judgement of divorce is granted and/or a separation or divorce agreement is signed and notarized, one’s spouse could obtain all of the wealth in the marriage, even if that was not the intention.

Elder abuse by a spouse or intimate partner may be psychological, physical, emotional, economic, and/or sexual. It can occur over a long period of time due to the victim, mostly older women, being afraid to leave, a deterioration of mental and physical abilities, economic dependance, fear of institutionalization, shame, guilt, values, culture and a lack of information about alternatives. Late onset domestic violence can also occur in senior intimate relationships due to worsening illness, the perpetrator’s frustration of being burdened and frustrated with increased responsibilities, retirement, and sexual change. Signs of elder abuse in a victim include frequency and severity of injuries, attempted suicide, delay of medical assistance, missed appointments, and intensification of depression, fear and trauma. A perpetrator may minimize or deny the complaints and injuries, blame and criticize his partner, threaten harm, engage in isolation of the victim, utilize alcohol or drugs and/or attempt suicide.

Elder abuse is a crime. A spouse or intimate partner is entitled to an order of protection and police protection. Emergency shelter and support groups are available. Resources include the National Domestic Violence Hotline at 1-800-799-SAFE; Eldercare Locator at 1-800-677-1116; elderabusecenter.org; National Center on Elder Abuse at 202-898-2586.

Posted in Uncategorized | 1 Comment

Non-biological & Intended Parent Protection: The Child-Parent Security Act

Non-biological Parent Protection
Currently, if a non-biological parent has not adopted a child, that parent may lose all rights of access to the child even if that parent has raised the child since birth. There are many tragedies where children who have had for years the benefit and attachment of two parents, upon dissolution of the relationship between the parents lose all contact and communication with the non-biological parent. Even when the non-biological parent wishes to continue parenting their children, the courts have dismissed their petitions.

For example, Mary and Marina agreed to utilize artificial insemination to have a child. Both women raised the children together in one household. Both adults engaged in parenting tasks and formed emotional bonds with the child. Mary gave birth to the child, and Maria paid for the medical procedures. The child called both women “Mommy.” When Maria and Mary separated, Mary prohibited Maria from seeing their daughter. Maria filed in court for custody and visitation. The Family Court in Rockland County dismissed the petition for lack of standing.

The proposed Child-Parent Security Act, pending in the New York State legislature, would statutorily remedy this unnecessary and potentially devastating loss of a parent to a child. Part 6 of the bill permits an intimate partner of a biological or adoptive parent, who has resided in the same household as the child, performed significant parental tasks and formed a parent-child bond, to obtain a judgment of parentage post-birth of the child. The proposed law specifically excludes grandparents and compensated caregivers. The biological or adoptive parent must have consented to the formation of the parent-child relationship in some written form, including but not limited to a birth announcement, school or medical records, a religious document, signed letter, or an executed contract.

Intended Parent Protection
Currently, surrogacy contracts are illegal in New York State. Many infertile and same-sex couples travel or make arrangements out-of-state and abroad to have a child with a gestational carrier. The proposed Child-Parent Security Act repeals the ban on surrogacy contracts, permits gestational agreements for compensation, and legitimizes intended parents. An Order of Parentage may be obtained by a court prior to birth. The gestational carrier must have independent legal counsel, be over the age of twenty-one (21), and has the right to make her own health care decisions. The law prohibits specific performance. Thus one cannot be forced to become impregnated. The law only applies where the gestational carrier does not provide any eggs or genetic material.

As it is currently worded, the legislation does not require the gestational carrier to obtain psychological counseling before entering into a gestational agreement or to have her own children already. I would ask the proponents of the bill to consider such a provision, and possibly raise the required age of the gestational carrier to lessen the chance of psychological and emotional damage to a young woman surrogate. The intended parents are required to financially support and assume all parental responsibilities of all children that are born.

There is currently no statute protecting unmarried couples and single women as parents who conceive through artificial insemination. There is also no law addressing the recognition of parents of children conceived through egg or embryo donation. The Child-Parent Security Act addresses the legal status of children and recognition of parents conceived through sperm, egg, and embryo donation. The proposed legislation provides an education in the understanding of the scientific terms of assisted reproduction technology. The comprehensive bill contains three pages of definitions including but not limited to gamete, embryo, embryo transfer, collaborative reproduction, donor, assisted reproduction, gamete provider, gestational carrier arrangement, and in-vitro fertilization.

Conclusion
The legislative intent of the Child-Parent Security Act is a recognition that family law and the definition of a parent need to reflect how many different types of families exist and are formed. It is essential that family law catch up with the science and technology of assisted reproduction to lessen the confusion, and provide consistency and legitimacy to children’s family units.

Posted in Uncategorized | Leave a comment

Social Media Clauses in Pre-Nups, Custody Agreements, and Orders of Protection

Social media clauses can be incorporated into prenuptial and post-nuptial agreements, child custody agreements and orders of protection from domestic violence. Damaging internet posts on social media sites can be legally prohibited. It is important to protect one’s reputation online in an era where employers, business associates, government agencies, academic institutions, friends, and future intimate partners are checking and tracing digital footprints.

Social media clauses in prenuptial and post-nuptial agreements
Social media clauses can prevent former spouses from posting items online that would disparage, harm, negatively affect the other former spouse’s image, or have any negative effect on a former spouse’s business, school, or career prospects. In these agreements, each spouse agrees that derogatory online posts will not be disseminated without prior written and/or electronic consent. Information that spouses agree not to share online is called “Protected Information.” Types of Protected Information include, but are not limited to, the other spouse’s personal and business activities, legal and financial affairs, physical health, and sexual activities. Such a clause can also prohibit the electronic dissemination of photographs, videos, emails or texts about or from the other former spouse.

An example of a social media clause in a prenuptial agreement is as follows:

All information that may in any way disparage, harm, cause to lower the other’s self-esteem, negatively affect the other’s public image, or have any negative effect on the other person’s business, school, or career prospects will be deemed Private and Confidential Information (HEREIN AFTER “PROTECTED INFORMATION”) that will not be disseminated without prior written and/or electronic consent. In each instance, the parties will not: (a) disclose, directly or indirectly, or cause or induce the disclosure of, any information, pictures, posts, comments; (b) remove, reproduce, summarize, copy, excerpt, distribute, sell, exploit or utilize in any manner whatsoever any PROTECTED INFORMATION that has been provided to them by the other party.

PROTECTED INFORMATION shall include, but not be limited to, information concerning the other party’s personal and business activities; legal and financial affairs; physical health; sexual activities; philosophical, spiritual, or other views; characteristics; whereabouts; any and all photographs, likenesses, tapes, films, videos, or audio and other recordings (including negatives, prints, or copies thereof) of or by the other party; and any emails, texts, or other forms of written communication about or from the other party.

Under no circumstances will the parties divulge any PROTECTED INFORMATION by any means or through any media whatsoever, including, but not limited to, through photographs, video, blogging, texting, “Tweeting”, “tagging”, or posting any such PROTECTED INFORMATION on any social media site, service, or platform, including but not limited to Facebook, Instagram, Twitter, LinkedIn. All PROTECTED INFORMATION shall remain the other party’s sole and exclusive property.

Social media clauses in custody agreements
The posting of children’s photos, videos with the children on YouTube, and/or even live videochatting/videotaping of children during access time with one parent has become a concern of parents in custody disputes as well as the courts and attorneys for children. A parent may want to share live videos and photos of a child with distant friends and family. However, when there is a lack of trust between the parents, a lack of knowledge over who new acquaintances are, as well as an increased use of social media for dating and socializing during a divorce, social media clauses in a custody agreement or court order may be appropriate. It may be appropriate simply because many pedophiles collect photos and information about children through the internet. The social media clauses concerning the protection of children can be directed at one parent or neutrally applied to both parents in the best interests of the child.

An example of a social media clause in a custody agreement is the following:

The parents agree not to use any social media involving the child during parenting time. The parent will not post pictures of the child on any social media sites without the other parent’s approval and access to the postings. These sites include, but are not limited to, Facebook, WhatsApp, and Snapchat.

A parent’s violation of the above conditions shall permit the other parent to immediately file to limit access and request supervised access with the child. A parent’s violation of said agreement’s social media clause shall serve as a change of circumstances for the parent returning to court for a modification.

Social media clauses in Orders of Protection
As discussed in my previous blog on Divorce in the Digital Age, cyber-attacks are not just against corporations and countries. One may be a victim of cyber abuse from a spouse or intimate partner. One in four stalking victims have been cyber-stalked. Cyber abuse includes, but is not limited to threats, name-calling, and derogatory remarks in text messages, e-mails, and postings on social media sites. Incessant digital/electronic communication, including numerous hang-up calls, or persistent voicemails and text messages can be considered harassment by a family or criminal court. Computer hacking permits one to gain access to private computer files. Spyware allows one to take snapshots of another’s computer through remote access. Creating false profiles and posts, changing passwords to delete critical e-mails, sending fraudulent e-mails, interception of e-mails, distributing photos, videos, personal information, and damaging one’s public image, or employment through the internet occur in vindictive matrimonial matters. There are a number of social networking sites, including “Formspring”, “Intellius”, and “MySocial 24×7” that are used for GPS and camera surveillance. It is essential not only to improve cyber security, but also to seek orders of protection against a perpetrator of cyber abuse.

When social media is used as a weapon, an Order of Protection can now contain language ordering one party to cease any type of communication with another party through social media. Specifically, an Order of Protection may order one party to refrain from communication or other contact by mail, telephone, email, voicemail, or other electronic means with the other party, including communication through social media.

In conclusion, social media clauses can also contain monetary penalties. Currently, when one commences an action for divorce in New York State, there are courts orders in place to prohibit the transfer of assets and destruction of computer files; perhaps the automatic orders should also contain a social media clause against disparagement of the other spouse and a children’s bill of rights.

Posted in Uncategorized | 1 Comment

The Before and Aftermath of the Supreme Court’s 2015 Same Sex Marriage Decision

By Sherri Donovan, Esq.

On June 26, 2015, the Supreme Court of the United States decided the matter of Obergefell v. Hodges. The petitioner, James Obergefell, sued the Director of the Ohio Department of Health after he was denied the right to be listed on his partner’s death certificate as the surviving spouse. This matter was combined, by the U.S. Court of Appeals for the Sixth Circuit, with several other lawsuits by same-sex partners against the respective authorities in Michigan, Kentucky, and Tennessee. Their argument was that the officials in these states violated the 14th Amendment of the U.S. Constitution by denying them the right to marry or to have marriages lawfully performed in another state given full recognition.

The Supreme Court held, in a 5-4 decision by Justice Anthony Kennedy, that the 14th Amendment to the U.S. Constitution required a state to license a marriage between two people of the same-sex, and to recognize a marriage between two people of the same-sex when their marriage was lawfully performed and licensed in another state. The Court also held that, under the 14th Amendment, there was no lawful basis for a State to refuse to recognize a lawful same-sex marriage performed in another state on the ground of its same-sex character.

The Supreme Court based its decision on America’s history and experience with the institution of marriage, in addition to the Court’s own jurisprudence as it pertained to marriage and intimate relationships. The Supreme Court also based its decision on the principle that marriage is a fundamental, individual right protected by the 14th Amendment’s Equal Protection clause, and that the Court’s action, rather than legislative processes, was urgently needed to prevent further pain and humiliation of the affected couples.

The implications of this ruling are far-reaching. The Obergefell decision now makes it possible for a same-sex couple to be married in any state in America, and to be recognized as a married couple should they move to another state in this country. This decision erases some uncertainty about the rights of a same-sex married couple that remained in the wake of the June 26th, 2013 Supreme Court case, United States v. Windsor. The Windsor case struck down Section 3 of the Defense Of Marriage Act (DOMA) and held that same sex couples are eligible for federal benefits – without reaching the question of whether same-sex couples had a constitutional right to marry nationwide. The Windsor decision was significant in providing rights and privileges for same-sex married couples, in areas such as real estate, tax, estates, health, immigration, social security and retirement benefits.

Massachusetts was the first state to permit same-sex marriage in 2003. In the year 2014, marriage equality gained tremendous momentum, starting with 16 states and the District of Columbia legalizing same-sex marriage. By the end of 2014, 35 states and the District of Columbia permitted same-sex marriage. On January 6, 2015, Florida was added to the list of states permitting same-sex marriage. In November of 2014, the Sixth Circuit upheld same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee. The Sixth Circuit Court decision directly conflicted with decisions from the Fourth, Seventh, Ninth, and Tenth Circuits. These circuits ruled that bans on same-sex marriage were unconstitutional after Windsor.

A key issue that has arisen in the wake of the Obergefell decision is the enforcement of religious freedom restoration acts and their effects on the rights of same-sex married couples in states that have such legislation. Some states have passed or amended this type of legislation before and after the Obergefell decision. The language that is often found in this type of legislation, according to Stephanie Francis Ward of the ABA Journal in a September 2015 article entitled “After Obergefell”, exempts businesses from providing services to same-sex married couples based on the owner’s religious beliefs, potentially making it legal for service providers to not provide services to same-sex married couples and for employers to deny to same-sex married couples the employment benefits to which heterosexual couples are entitled. This issue is made even more complex since 28 states do not prohibit sexual orientation discrimination, 31 states do not prohibit gender-identity discrimination, and federal law does not consider the LGBTQ community a protected class in the private sphere.

Federally, two legislative items have been proposed to address this problem. One is the Employment Non-Discrimination Act, which seeks to stop workplace discrimination against LGBTQ individuals by employers that employ at least 15 people. The problem with this piece of legislation (which was first introduced in 1994), however, is its broad religious exemption. The other proposed legislation is the Equality Act, introduced this July, which seeks to stop sexual orientation and gender-identity discrimination in employment, education, housing, and public accommodations.

The approach at the state level has varied, either with compromise legislation such as that in Utah (which passed legislation prohibiting housing and employment discrimination based on sexual orientation and gender identity without dealing with public accommodations and leaving religious exemptions on the books), or with more one-sided legislation such as that found in Arkansas, Indiana, and Mississippi that provided protections and exemptions for businesses and other organization based on religious beliefs. Such one-sided legislation was sometimes found to be so broad that business might be allowed to avoid following local anti-discrimination ordinances. This, particularly in the case of Indiana, led to situations in which businesses and conventions threatened to pull their operations out of the state unless changes were made to the more one-sided religious freedom restoration acts.

The protection of the relationship between children and their LGBTQ parents, especially when the parents are unmarried or otherwise not biologically related to the child, needs to be addressed by further legislative and judicial action. In New York, currently, there are no sufficient legal protections for children and non-biological parents. Current New York law prohibits a regulated process for reproduction through assisted pregnancy, and children conceived through surrogacy have a very insecure legal relationship with their intended parents. Second parent adoption, one conceivable solution for this situation, is overly burdensome for families, and in some cases may not be a viable option. A legislative effort to address this problem exists in the New York State Legislature through a bill entitled “The Child-Parent Security Act.” This bill is proposed to address the issue of a child’s parentage and regulate the processes of assisted pregnancy.

Transgender individuals, children, and parents face enormous hurdles and continue to be victims of discrimination and bullying. A transgender male was refused a divorce in Arizona. For transgender youth, parental consent and many times court approval is needed before medical treatment can begin or continue for transitioning gender. Legal protections for the transgender population are essential. Some States, including New York, have legislation pending to prohibit conversion therapy (attempts to force heterosexuality upon gay and lesbian minors). Finally, a greater sensitivity and emphasis is needed to enforce and provide laws against domestic violence in LGBTQ relationships.

Posted in Uncategorized | Tagged , , , , , , , , , , , | Leave a comment

2015 Legislative Changes in Matrimonial and Family Law in New York State

By Sherri Donovan, Esq.

A permanent maintenance formula will come into effect in New York this year for the first time. On June 24, 2015, the New York State Senate passed a bill that will bring a number of revisions to the Domestic Relations Laws regarding the spousal support. The New York State Assembly passed this same bill on June 15, 2015, the previous week. It is widely expected that Governor Cuomo will sign this bill, which has support from several prominent legal organizations such as the New York State Bar Association and the Women’s Bar Association of the State of New York into law before the end of the year.

One change is that the current temporary maintenance law and formula, in effect since 2010, will be replaced with a new temporary maintenance formula. Now, there will be two different computational maintenance formulas. One formula is that in which child support will be paid and in which the temporary or post-divorce maintenance payor is also the non-custodial parent for child support purposes. The other formula is that in which child support will not be paid, or where it will be paid but the temporary or post-divorce maintenance payor is the custodial parent for child support purposes.

Notably, the numeric maintenance formulas will now be brought to post-divorce maintenance calculations. For instance, the changes to the maintenance formulas provide specifically for interaction between maintenance formulas and child support computations. In particular, when child support is to be paid in addition to temporary and/or post-divorce maintenance, under the new law, 25% of the maintenance payee’s income will be subtracted from 20% of the maintenance payor’s income. Then, the total of the maintenance payor’s income and the maintenance payee’s income will be multiplied by 40%, and the maintenance payee’s income will be subtracted from the result. In the alternative, when there is no child support awarded, or when the maintenance payor is the custodial parent for purposes of child support, 20% of the maintenance payee’s income will be subtracted from 30% of the maintenance payor’s income. Then, the total of the maintenance payor’s income and the maintenance payee’s income will be multiplied by 40%, and the maintenance payee’s income will be subtracted from the result. The lower sum of these two formula calculations will be the guideline amount of maintenance.

The new permanent maintenance legislation provides for an advisory schedule for the duration of the maintenance award. The durational periods now have ranges to afford courts discretion. The advisory durational periods are (a) marriages of 0-15 years’ duration (maintenance payable for 15%-30% of the length of the marriage), (b) marriages of 15-20 years’ duration (maintenance payable for 30%-40% of the length of the marriage), and (c) marriages of over 20 years’ duration (maintenance payable for 35%-50% of the length of the marriage). However, a court can still award non-durational, lifetime maintenance in an appropriate case. In order to determine the duration of maintenance, a court is required to consider anticipated retirement assets, and retirement eligibility age.

The income cap for temporary maintenance awards has been lowered from $543,000 to $175,000 of the payor’s income. The new cap of $175,000 also applies to post-divorce maintenance awards. Income is explicitly defined as income under the Child Support Standards Act and under DRL § 240. The new law preserves a judge’s rights to deviate from the guidelines when the amount of maintenance would be unjust or inappropriate. The new law also provides the court with discretion to allocate the responsibility for payment of specific family expenses between the parties in such percentage as the court deems equitable. A court must list the factors that it has considered in writing in its decision when deviating, and its rationale.

A court may consider the following factors when deviating from the new maintenance guidelines: the age and health of the parties, the parties’ earning capacity, the need for a party to incur educational or training expenses, the wasteful dissipation of marital assets, and the availability and costs of medical insurance, the termination of a child support award, the existence and duration of a pre-marital joint household, actions by a spouse that inhibited the other spouse’s earning capacity or ability to obtain meaningful employment, the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws, the tax consequences to each spouse, the parties’ established standard of living during the marriage, the reduced or lost earning capacity of the payee due to foregoing or delaying educational or career opportunities during the marriage, the equitable distribution of marital property and the income or imputed income on the assets so distributed, and the contributions of the payee as a spouse, and parent.

A spouse’s professional degree and professional licenses earned during the marriage will no longer be treated as a marital asset, pursuant to the new legislation. The provisions of the bill regarding post-divorce maintenance and spousal support guidelines are effective 120 days after signature by Governor Cuomo and is applicable to both matrimonial and family court actions commenced thereafter. The provisions of the bill involving temporary maintenance become effective 30 days after signature by Governor Cuomo.

Posted in Uncategorized | Tagged , , , , , | 3 Comments