The Handmaid’s Tale is Reality

By Sherri Donovan, Esq.
sherri@sherridonovan.com

I remember meeting Supreme Court Justice Brennan in his chambers at the Supreme Court when I was in law school. With his eyes sparkling brightly, he told me that it was letters from women around the country that inspired his vote and determination for Roe v. Wade. My late term abortion was traumatic enough when a hole in the stomach of the fetus was discovered. I can not imagine if I would have been forced to carry to full term only to give birth to a dead fetus. I am forever grateful to a Planned Parenthood clinic in Vermont that assisted me with an early abortion. My friend Donna had an ectopic pregnancy and would have been dead if not for her abortion. My mother was forced to do a back alley dangerous abortion in Puerto Rico because abortion was not legal. My daughter is distraught that she and possible children in the future will have less rights than her mother and their grandmother.

Dobbs v. Jackson Women’s Health Organization will go down in history and herstory as a catastrophic Supreme Court decision. I was appalled that Alito, who writes for the majority compares overturning Plessy v. Ferguson which legalized race segregation to the Dobbs decision which overturns Roe v. Wade and permits the restriction of a woman’s rights to control her own body.

The Dobbs majority completely ignores the Women’s rights movement and advances over the last century and recent decades. It completely ignores that it is a matter of healthcare, life, liberty and privacy for women. The majority opinion refuses to recognize that the clear majority of the US population is in favor of pro-choice. More than two-thirds of Americans are in favor of retaining Roe. One quarter of American women will have an abortion before the age of 45.

The Supreme Court does not mention that this decision is out of step with the rest of the world.  Over the past several decades, more than 50 countries throughout Asia, Africa, Europe and the Americas have liberalized their abortion laws. Latin American countries have more reproductive rights than the women in the USA. Only the United States, Poland and Nicaragua have reduced abortion access in the 21st century. Canada has decriminalized abortion at any point in a pregnancy. Most Western European countries impose restrictions on abortion after 12 to 14 weeks, but they often have liberal exceptions to those time limits, including to prevent harm to a woman’s physical or mental health.

The Court without unanimous support overturns precedent of two Supreme Court decisions, Roe v. Wade, and Casey v. Planned Parenthood and more than twenty other cases reaffirming or applying the constitutional right to abortion. There is no change in law or fact that necessitated this drastic, action. As the dissent in Dobbs makes clear, “Casey is a precedent about precedent. It reviewed the same arguments made here in support of overruling Roe, and it found that doing so was not warranted.”

The Alito decision is stuck in the criminal earlier history of abortion. Women were chattel in this country and could not own property, vote or obtain a credit card or law license. How far back would these extreme right judges and appointees of Trump go?  The dissent points out that, “The majority makes this change based on the question: Did the reproductive right recognized in Roe and Casey exist in “1868, the year when the Fourteenth Amendment was Ratified? … Those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second class citizenship”. The dissent continues, “…our point is different: It is that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. Roe and Casey fit neatly into a long line of decisions protecting from government intrusion a wealth of private choices about family matters, child rearing, intimate relationships, and procreation. … In the Fourteenth Amendment’s terms, it takes away her [a woman’s] liberty.  In conclusion, Kagan, Sotomayor and Breyer state “With sorrow – for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection – we dissent.”

According to the majority of the US Supreme Court, guns have more rights than women over their bodies. The hypocrisy and blatant political nature of the Dobbs decision is clear. In their opinion June 23, 2022 forcing New York and other densely populated states to allow more handguns in public and causing more danger to the public, the conservative majority, led by Justice Clarence Thomas, argued that medieval law imposing arms restrictions – specifically, the 1328 Statute of Northampton – “has little bearing on the Second Amendment” because it was “enacted… more than 450 years before the ratification of the Constitution.” Yet in their ruling the next day, June 24, 2022 in Dobbs v. Jackson Women’s Health, setting women’s rights back half a century the conservative justices, led by Samuel Alito (who was also in the guns majority) and joined by Thomas, argued precisely the opposite. They justified abortion bans by citing, among others, “Henry de Bracton’s 13th-century treatise.” That was written circa 1250 and referred to monsters, duels, burning at the stake – and to women as property, “inferior” to men. The moral hypocrisy about helping families and children is noted when considering that, a state-by-state analysis by public health professionals shows that States with the most restrictive abortion policies also continue to invest the least in women’s and children’s health, as the Dobbs dissent exemplifies.

The dissent begins by stating, “For half a century, Roe v. Wade, 410 U. S. 113 (1973), and Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992), have protected the liberty and equality of women. Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions… Today’s Court, that is, does not think there is anything of constitutional significance attached to a woman’s control of her body and the path of her life”.  The dissenting opinion written jointly by Justices Sonia Sotomayor, Elana Kagan and Stephen Breyer states that the Court is “rescinding an individual right in its entirety and conferring it on the State, an action the Court takes for the first time in history.” The Dobbs dissent points out that the majority’s brazen rejection of stare decisis, respect for precedent, “breaches a core rule-of-law principle, designed to promote constancy in the law.” The dissent said the majority’s refusal to address real world consequences “reveals how little it knows or cares about women’s lives or about the suffering its decision will cause.” The dissent raised questions about rape, incest, threats to a mother’s life, interstate travel for abortion, morning-after pills, IUDs, and in vitro fertilization. The dissent writes, “Most threatening of all, no language in today’s decision stops the Federal Government from prohibiting abortions nationwide, once again from the moment of conception and without exceptions for rape or incest. If that happens, “the views of [an individual State’s] citizens” will not matter … The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment,”

Even Chief Justice Roberts admonished fellow conservatives for cavalierly overturning the Roe v. Wade super-precedent. “Surely we should adhere closely to principles of judicial restraint here, where the broader path the court chooses entails repudiating a constitutional right we have not only previously recognized, but also expressly reaffirmed” Roberts wrote, The majority’s “dramatic and consequential ruling is unnecessary,” and “a serious jolt to the legal system”.

The concurrence of Clarence Thomas makes specific reference to overturning other well established precedents that rely on the 14th Amendment. He cites Griswald which concerns the right to use birth control; Lawrence v. Texas protecting consensual adult sex and Obergefell granting the right to same sex marriage. How peculiar he does not mention Loving v Virginia which relies on the same constitutional principles and protects interracial marriage. Justice Clarence Thomas’s separate concurrence made crystal clear that he would indeed do away with the entire substantive due-process doctrine on which the right to abortion rested. As the Justices Sotomayor, Kagan & Breyer sharply note in the dissent, “Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.”

Pregnant women, health care providers, pharmacists, as well as possibly volunteers, family members, friends and anyone who has significant contact may be investigated, or arrested as suspect if a pregnancy does not end as a healthy birth. Surveillance will certainly increase.  Half the States will move to outlaw or restrict abortion. Will there be trials and investigations if a miscarriage is murder? In certain States, Women now risk criminal prosecution for ordering a day after pill. Health care providers will now have the dilemma of letting women die or suffer serious injury or risk loss of their license or a lawsuit if they perform an abortion. Poor, Black & women of color will be punished the most. Approximately fifty-two percent of women of child bearing age will face abortion restrictions.  During the past four years, eleven states have passed abortion bans that contain no exceptions for rape or incest.  In Texas, already, children aged nine, ten, and eleven, who don’t yet understand what sex and abuse are, face forced pregnancy and childbirth after being raped. States might also ban other reproductive practices, such as in vitro fertilization or the use of intrauterine devices.

What is to be done?

1. Utilize your First Amendment right to protest.
2. Join and support reproductive rights organizations and organizations assisting women in States that restrict abortion and other reproductive rights/ birth control options.
3. Support electoral candidates that advocate for abortion rights.
4. Get active in the mid-term elections.
5. Advocate for the passage of federal legislation to codify Roe.
6. Advocate for the immediate addition of judges to the Supreme Court and other judicial reforms.
7. Learn and teach women how to protect their privacy to avoid unintentionally providing possible evidence to prosecutors who can get access to information through health care institutions and technological devices.  
8. Utilize and share the following resources:
   If you need to find a clinic or help people find a clinic: https://www.ineedana.com/ • Text ‘hello’ to 202-883-4620 Abortion Funds in Every State: https://donations4abortion.com/  • Twitter: @helmsinki created this website/resource of abortion funds Keep our clinics – https://keepourclinics.org/ •Independent clinics provide 2/3 of abortions in the US. • Twitter: @AbortionCare All Options: https://all-options.networkforgood.com/ • Provides pregnancy options counseling and financial support for abortion seekers. Practical support groups: https://www.apiarycollective.org/our-work •Brigid: https://brigidalliance.org/donation/ • MAC: https://midwestaccesscoalition.org/pages/donate • Digital defense fund: https://digitaldefensefund.org/ • Reproductive Health App Euki (created with privacy in mind): https://eukiapp.com/Reproductive • Legal Defense Fund https://reprolegaldefensefund.org/ • Twitter: @reprolegalfund Reproductive Legal Help Line: http://www.reprolegalhelpline.org/ •Call 844-868-2812 •Message through online secure form IWRising: https://iwrising.org  • Financial and practical support for Indigenous abortion seekers •Twitter: @IWRising Self-Managed Abortion information: https://reprocare.com • Twitter: @reprocarefund • Can call or text at 1-833-226-7821 for information, support, and referrals. For adolescents and minors under 18 who need an abortion:  https://janesdueprocess.org/  • Twitter @JanesDueProcess • Can call or text at 866-999-5263 and they will help them navigate the process. 722 West 168th Street, New York, NY 10032 Telephone: 212.342.5127 Abortion Squad combats abortion-related misinformation:  https://onlineabortionresources.org  • Twitter @Abortion_Squad •Funding for their work: https://ko-fi.com/abortionsquadSupport and follow the leadership of Reproductive Justice Organizations (here are a handful): SisterSong: https://www.sistersong.net/reproductive-justice  •Black Mamas Matter Alliance: https://blackmamasmatter.org/  • In our own voice – National Black Women’s Reproductive Justice Agenda: https://blackrj.org/ • SisterLove: https://www.sisterlove.org • Spark Reproductive Justice Now!: http://www.sparkrj.org Rebecca Gomperts, who leads Aid Access, an organization based in Austria is openly providing abortion pills to women in prohibition states, and has been safely mailing abortion pills to pregnant people all over the world since 2005, with the organization Women on Web.

www.sherridonovan.com

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THE BITCOIN BATTLE IN DIVORCE: THE DIGITAL CURRENCY DIVIDE

By Sherri Donovan, Esq.

Hidden assets is nothing new in matrimonial proceedings, but identifying, valuing and dividing digital currencies is.

IDENTIFYING CRYPTO

There are different types of digital currency that have significantly increased in usage since being initially minted in 2008.  Bitcoin is just one of them. The other types of known digital currency include but are not limited to ethereum, litecoin, cardano, and monero, dash, zcash, PIVX, verge, horizen and grin.  Also called crypto, such currencies are traded online, worldwide and may be done anonymously. Digital currency is bought, sold, and traded on various platforms. Coinbase is a popular platform used for Bitcoin. Some other digital currency exchange platforms are Kraken, BitStamp, ShapeShifit, Gemini, and Bisq. Crypto value is based on supply and demand. It may be difficult to find or freeze crypto transactions. There is also less security with crypto assets and transactions than traditional assets as there are no intermediary banks utilized, very little governmental regulation, and hacking is feasible. Crypto is also highly volatile. Digital currencies are used to transfer large sums of wealth, investment purposes and currently is often utilized to pay bills, make purchases, and obtain loans. There is also nonfungible tokens, or NFTs, a form of crypto-fied digital art.

In a divorce action, each spouse is required to provide a Statement of Net Worth with full disclosure of assets, income and transfers made within the last three years, including items concerning digital assets. The Automatic Orders that are served on a spouse with the initial divorce documents require that no assets be transferred, except in the ordinary course of business, or destroyed. Discovery of financial documents and information is also required.

However, there is no obligation to have a name, address and personal information associated with crypto currency like a traditional bank. To access digital currency, there is a public key and a private key. Public keys are listed in public records using a distributor ledger technology. The most well known type is blockchain. Blockchains can include a piece of information called a hash.

The private key is analogous to a password held by the owner and is not visible to the public. The place it is stored is known as the ‘wallet’. The wallet can be stored digitally in the software of a computer, a USB or a QR code. The key can even be broken up and stored in different parts of the codes in different places. If an owner does not enter the code correctly or misplaces the private key, the asset may be lost.

THE USE OF FORENSIC EXPERTS

A forensic investigative expert, can look for crypto points of entry and exit. Such an expert can also assist a matrimonial attorney in formulating questions, drafting subpoenas and reviewing documents to determine the existence of digital currency and crypto transactions. The forensic expert can examine the family’s computers, hard drives and software to acquire additional evidence of virtual assets. Forensic experts can search electronically stored information for digital currency ticker symbols or for login credentials. 

The forensic investigator with access to the owner’s keys may be able to download a transaction history from the owner’s wallet or exchange platform. The transaction history is often downloaded as an Excel spreadsheet or other electronic document. The download contains information like a bank statement such as date, time, amount of cryptocurrency, conversion rate, balance, transaction ID, and hash information.

Valuation of Digital Assets

The volatility of crypto and other digital assets makes valuation more difficult, especially as of date of agreement, trial date or date of commencement of the matrimonial action. Tax records can shed some light on the value of prior digital transactions by looking at the reported gains and losses. The gains and losses show how much the value increased or decreased up to when they were taxable.

The Digital Currency Divide – property distribution

A spouse may want to obtain more secure and stable assets in exchange for the digital assets, unless one prefers extreme risks and action. Court enforcement of transferring such assets is also more slippery.

If there is circumstantial evidence of existing or former digital assets that are now missing or hard to prove, the court can provide an add back by awarding one spouse more of the tangible assets to compensate for the loss of the intangible assets.

Last but not least, all assets must be tax impacted during the distribution stage of a divorce. In 2014, the Internal Revenue Service issued Notice 2014-21 which stated virtual currency was to be treated as property for tax purposes and therefore subject to capital gains taxes.

The existence of cryptocurrency may also affect your current and past income tax returns.

Sherri’s precedent case on animal rights in divorce is codified into New York State Law.

Lucky, Sherri’s long time animal companion

In 2013, Ms. Donovan brought a motion in the case of Travis v Murray requesting that Joey the dog’s interests be considered in a divorce case. The standard law at the time was to treat pets like a piece of furniture. Whoever had the receipt for the purchase or the animal’s ownership license would be entitled to the pet as a piece of property. Ms. Donovan requested the Supreme Court to consider the interests of all family members including Joey.  In determining pet custody, she asked the presiding Judge, Honorable Matthew Cooper to consider such points as who took physical and emotional care of Joey including feeding, walking, veterinarian appointments, and even which side of the bed Joey chose to sleep.

Ms. Donovan cited a 1990’s appellate case to support her arguments. In a detailed decision, Judge Cooper ruled that Joey’s interests would be considered and that a one day hearing would be appropriate.

In the Fall of 2021, Governor Kathy Hochul signed into law, a new provision in Section 236 of the Domestic Relations Law of New York State codifying the Travis v Murray decision. The statute requires courts in a divorce or separation to consider the best interests of a companion animal that routinely resides in the home in determining pet custody. The definition of companion animal was taken from Agriculture and Markets Law and excludes farm animals.

Assemblywoman Deborah Glick, stated upon passage, that animals are sentient beings and should not be used as bargaining chips or, as animal activists have added, suffer violence or revenge injury. New York State joins Alaska, California and Illinois to codify the legal concepts of animal rights in Sherri’s case.

In future cases, animal behaviorists may be utilized as experts in pet custody cases to assist judges in determining the best interests of a companion animal. At a recent Women’s Bar Association presentation, Alexander Horowitz, Senior Research Fellow at Barnard College cited recent studies and guidelines for determining best interests of animals. Ms. Horowitz first cited, that a 2019 study found that 85% of dog owners and 76% of cat owners consider their pets members of the family (it would not be surprising if those percentages have increased since the pandemic). Ms. Horowitz then suggested that in determining best interests of a species one needs to look at physical and cognitive needs as well as an individual animal’s special needs, behavior, health, physical environment, and mental state.  Is there an opportunity for exercise, relaxation, play, and gentle handling or is the animal fearful, anxious, bored or exhibiting misbehavior in the company of a particular human adult or child are all questions that should be considered.

Families of course can and have been making agreements concerning pet schedules with family members and responsibilities for animal companion’s care during a divorce or separation process.

CONFETTI in Africa!

Director Ann Hu and Film Confetti team’s newsletter honoring Sherri Donovan.

We start this year by honoring Sherri Donovan, Esq, who has championed CONFETTI from the beginning, hosting a theatrical screening in New York. One of the top family lawyers in the US and founder of Art Helping Life, Inc., throughout her career, Sherri has focused her work helping multicultural families and children with special needs.

Sherri (pictured below in Senegal, Zimbabwe & Sri Lanka) has traveled to over 135 countries, and with her international nonprofit organization has created programs that include arts, english and sports education to help underprivileged children to grow, develop skills and broaden their awareness of the wider world.

Sherri’s amazing efforts have also included building a community center in the fishing village of Somone, Senegal, where young people can learn, play and improve their lives through creative expression and expanded cultural understanding.

Sherri was so inspired by the universal message of hope in CONFETTI, that she and Ann have decided to establish the first African Confetti Project “Confetti World”. 

Confetti World will work alongside Art Helping Life, Inc. with a specific mission of encouraging accessible special education and empathy around learning differences in Senegal and throughout the West Coast of Africa.

We are so excited that the inaugural Confetti Project event will happen this February in the old capital of Senegal, St. Louis. The event will be highlighted by a special “Confetti World” concert by the internationally-celebrated Senegalese singer Mamadou Waflash (pictured below). 

Mamadou Waflash, known as the Bob Dylan in Africa, will perform to thousands of children, including two songs “ABC”, and “Little Bee” that are featured in the film. Mamadou, who’s commitment to humanitarian work is as strong as his musical career, will join Sherri to become our first Confetti Ambassadors in Africa.

Sherri powerfully states: “Ann Hu’s film, CONFETTI, is critical to universal education so that no child gets left behind or falls through the cracks, particularly due to special needs, race or immigrant status. Every child has a special talent to contribute; it is up to all of us to assist the children through imaginative education in a supportive and loving environment.”

Children’s Concert – 2022

YOU’RE INVITED

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Birth By Paid Surrogacy is Now Legal In New York

By Sherri Donovan, Esq. The ban on commercial surrogacy in New York State has been lifted. On February 15, 2021 compensated gestational surrogacy was codified into New York State law. Also, originally known as the Child Parent Security Act, the … Continue reading →

SHERRI DONOVAN AS POETRY AUTHOR

                         

              Sherri Donovan is a published author and blogger. Reflections is her second book of poetry. Her first poetry book is entitled, Matryoshka Rising. Her poems have also been published in the Poetry Anthology. Sherri has performed her poems at the Cornelia Street Cafe, New York County Lawyers Association, and in-salon poetry circles internationally. Her articles have appeared in The Huffington Post, New York Law Journal, Cosmopolitan and Parent Magazine. Sherri Donovan is also a family lawyer, founder of the nonprofit, Art Helping Life, Inc. and has traveled to 136 countries. After many years in New York City, Sherri is currently residing in Oyster Bay, Long Island.  You can read more blog posts from Sherri Donovan at Sherridonovan.com/Sherri’sblog.

           Sherri’s newest poetry book is entitled, Reflections.  Reflections was written during quarantine, travels cut short from COVID-19 and from vulnerable parts of her heart with words that were sometimes better left unsaid but spilled out anyhow. Reflections is divided into three parts: Plague Poetry, Journeys and Heartbreaks. The book also includes many of Sherri’s photographs. Some of the topics deal with domestic violence, genocide and family dynamics. Ashley Blanz assisted with editing and formatting.

        Sherri’s first book of poetry is Matryoshka Rising, Poetic Briefs.  The poems in Matryoshka Rising can sting and please our senses. They are inspired by 5 a.m. silences, in between spaces and injustice. They capture a fleeting moment, a snapshot of an emotion. The book is divided into five parts: New York City, Going Global, Human Rights, Love & Pain, and Words. Meagan Jennett provided editorial and formatting assistance.

             Sherri’s poetry books are available utilizing the 3 links below:

https://www.amazon.com/Reflections-Poetry-Sherri-Donovan-ebook/dp/B08D7W4X8D

https://www.amazon.com/Reflections-Poetry-Sherri-Donovan/dp/B08DC9ZXQG

https://www.amazon.com/Matryoshka-Rising-Poetic-Sherri-Donovan/dp/1542345472

Happy Reading and reviews welcome on Kindle, Amazon and this blog post.

 

 

 

 

 

Divorce Homebound or Lockdown with my Ex

Divorce Homebound or Lockdown with my Ex

Divorce and a pandemic disease each count individually as a major stress factor severely affecting health and mental sanity; the two together can be catastrophic to one’s self and family without guidance, strategies & information.

This article will identify relevant family law, psychological issues and survival points for dealing with divorce and the corona virus during these challenging times. Particular topics will include domestic abuse, children and custody, financial support, and legal assistance.

Domestic violence vs. Covid-19. A serious quagmire. Which is more dangerous? Do you choose your poison? How can one avoid injuries or death from both. Self-quarantine and staying home are necessary and required to avoid the virus and flatten the curve of this pandemic. (Also, washing your hands with soap and water for 20 seconds; using hand sanitizer before and after touching outside doorknobs and elevator buttons, staying 4-6 feet away from others and shrinking your social circle, see Dr. David Price of Cornell video on Covid-19 & Protecting Your Family). This may mean being on lockdown or cooped up with an abusive spouse or partner. Even in the best of relationships, not being able to go out except for a walk or a jog and being required to spend most of the time homebound or in a small space can cause an increase in stress, spats and violence. This is especially true if sickness, unemployment and/or a history of abuse exists.

The problem is exacerbated by social distancing and isolation from supportive family members, friends, and professionals as well as a breakdown in the availability of social, administrative and legal systems for domestic abuse victims. Many professional offices, nonprofits and even courts are closed. Police officers and agencies are swamped with assisting the sick, the elderly, medical staff and hospitals. Only essential and emergency services and businesses are supposed to be operating.

However, you do not have to fall through the cracks or suffer in silence. In New York and other States, the family courts may be closed but there are limited virtual parts open to hear emergency domestic violence and child abuse cases by video or telephone. Each county or a consolidated region has a court telephone number to call to file for new emergency or essential matters including an order of protection. These temporary and final orders of protection may or may not include for your spouse or partner to be excluded from the home, depending on the severity of the problem. A court clerk on the telephone will determine if it is an emergency matter and will help draft the petition. For instance, the New York County Family Court number to call is 646-386-5299 Monday – Friday, 9 a.m. to 5 p.m. For evening hours and weekends the criminal courts are available to hear domestic violence claims. Temporary orders of protection that were put in place before the shutdown of courts are extended until further notice. Safe Horizons has a 24 hour hotline for domestic abuse victims, 1-800-421-4673 and a website, safehorizon.org. You can research other domestic violence organizations and check my website, sherridonovan.com under the domestic violence section for further resources. Telehelp is available for medical and social services.

Children maybe more vulnerable and face greater inconsistent parenting by divorcing parents during this period of the coronavirus. With school and afterschool activities shutting down, children are home. Children need to be especially protected by internet predators and bullying with a possible and perhaps inevitable increase in computer and smartphone time.

Disputes between parents in conflict may increase regarding new issues concerning the virus, social distancing and how much outside home exposure, visits and activity the children should have. Questions of, should the children still transition between separated parents’ homes; should they be exposed to a parent’s new partner and that person’s children; should the caretaker, babysitter, nanny, family members or any third party be near the children; or how should the children be educated will arise. Also, the children are stuck more than usual listening to and absorbing the tension of their parents’ physical, verbal, or unspoken conflicts.

Special needs children who crave and behave best with structure and familiar routines may find it most difficult to adjust to this crisis of interrupted schedules, aides and programs. Of course, if a parent or a child is sick, from the virus, or was banned from returning home due to travel more stress, health issues and potential damage is at stake. Creativity, cooperation between parents, reasonable precautions and professional advice are critical to help the children.

I am available as a parent coordinator to remotely assist.

If a parent violates a court order concerning custody/ parenting time the courts are only available for emergencies. A writ of habeas corpus to produce the child can be requested using similar procedures as outlined in the domestic violence section above.

Economic issues due to the virus are also causing havoc on families. With layoffs, closed businesses, reduced income and lack of opportunities money is extremely tight. Unemployment takes time to apply for and obtain. Business loans and one-time direct funds are available pursuant to the stimulus federal legislation but take time to receive and may be insufficient to cover the shortfall. Increased medical expenses due to Covid-19 can be devastating. Many families also lost funds or benefits due to cancellations of trips, events & services. The trauma and danger will certainly affect at risk communities the most including but not limited to prisoners, detained immigrants especially unaccompanied minors, refugees and people in poverty. Child support and maintenance will be harder to obtain and enforce. Already existing agreements, court orders and divorce judgements may provide for the right to apply for a reduction in support payments due to a reduction in income. A reduction due to a significant change in circumstances can usually be made. However, a court clerk & judge will have to determine if an emergency exists or they may deny the motion at this time. It should be noted all statute of limitations for filing legal actions have been stayed in New York State.

Also New York State has stayed residential and commercial evictions for ninety days. Divorce actions cannot be commenced at this time in New York State. Court dates for legal cases that were initiated before the closing of the courts have been mostly postponed or may be heard remotely with a telephone or video appearance at a judge’s directive.

It is also difficult to sell real property at this time since real estate is not considered an essential business. People are not entering other people’s homes or meeting for business transactions. The market is sluggish. Preparations can be made now virtually or with social distancing for future sales. New York State has provided relief concerning mortgage payments.

It is difficult to negotiate support numbers and property division with stock market and financial uncertainties present. Yet many separating and divorcing couples need to disentangle property and set up payments of support. I am working remotely and available to consult, assist, negotiate, collaborate and mediate family temporary and more permanent agreements.

By
Sherri Donovan, Esq.
Matrimonial & Family attorney; mediator and parent coordinator
Sherri@sherridonovan.com
(917) 723-1163
http://www.sherridonovan.com

The Polish Holocaust Law

 

The Polish Holocaust Law

By Sherri Donovan, Esq.

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 27^th. 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.

 

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 30^th, 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.