My Passion for Cuba

I recently was one of the first Americans to travel to Cuba solo without an organized group (although still licensed for educational purposes). My first trip was in March, 2015, a couple of weeks before the solo trip.  The first trip was with the New York State Bar Association in conjunction with Cuban Cultural Tours.  On my first trip, I saw and experienced Havana mainly through organized programs such as the Revolution Museum, the National Museum for Fine Arts, artists’ studios, and fancy paladars (restaurants), one of which was where the movie “Strawberry & Chocolate” was filmed. On my second trip, depending on my broken Spanish and my contact with local individuals and new Cuban friends, I explored and was exposed to the unofficial life of Cubans and the beautiful countryside of places like Cienga de Zapata, the largest wetland in Cuba, Las Terrezas, a community of 1500 Cubans at a biosphere reserve, Vinales Valley, an UNESCO world heritage landscape with limestone peaks, and Cayo Julio, a northern beach and village community.  I also wandered through the city of Matanzas, snorkeled, swam and hiked in caves with crystals, chased wild pigs into the forest, and puffed a cigar (although I do not smoke) on a restful Sunday afternoon with local campesinos (farmers) near the tobacco plant fields.

My base on both trips was a room with a view in Havana. (According to Virginia Wolf, every woman must have a room with a view to gaze, write and feel alive – I agree).  I opened my shutters to stare down at the Prado (wider avenue) and the tiled square.  The streets were squeaky clean, lined with lampposts and trees – like a Spanish train set scene. The rooftops gave me a panoramic view of the peeling buildings of Havana (in NYC we call it “distressed chic” and pay thousands for it) and the Malecon highway adjacent to the blue waters of the Florida Straits.

My view of the rooftops from the seventh floor also provided a glimpse of daily life.  I saw a young woman teaching her baby to walk.  The little one hobbled bowlegged with two fingers held to the mama’s hand.  On the next roof, an old man fiddled with containers daily. Laundry is strung and flopped in the sky. As Professor Rafael Hernandez, author of the The History of Havana pointed out, Cubans live with physical transparency, with windows and doors wide open.  I watched the sky colors change, tranquility without checking e-mails and calls every ten minutes. The various shades of blues and greens, turquoise, and cobalt that reflect from the island’s water on deserted beaches inspired me to watercolor.  I gave the watercolor upon request with a warm message in Spanish to my new Cuban brother and driver, Frank, his wife, Karenia and their older daughter and younger son, a most handsome family. Frank and Karenia live in Alemar, one hour outside Centro Havana, and travel each day to work.  They live as many Cubans do, in a Soviet-constructed, tall, concrete, multi-colored apartment building.

On the cobblestone and tar roads were long buses provided by China and American Chevys dating back to the 1950’s, some shiny and convertible, others were more worn, passenger cars for Cubans, vintage beauties nonetheless. I rode some nights on the leather seats with the warm breeze caressing my face and blowing my blond curls. (My hair, yellow, swimming in the sea appeared to a couple of Cubans who had never seen blond hair in the northern local keys like a tropical fish!) The maze of narrow paths of Habana Vieja (old Havana) are surrounded by Spanish Colonial style buildings, fountains and churches. Stepping over piles of rubbles from fixing underground pipes for sewage (a good project of the City), Professor Marta Nunez and I discussed our children and her new grandchild. We walked arm in arm like old friends. Professor Marta Nunez of sociology was a Cuban diplomat to the Soviet Union and then Russia. She was a visiting professor at Harvard, has a class of Brown University students in Cuba, and lectures for the National Geographic.  As a child, she attended an American school in Cuba before and after the revolution. She is an author for the independent magazine, Termos, and has completed extensive research on the new private businesses cropping up in Cuba. Professor Nunez compared by gender the functioning of independent small businesses concerning the renting of rooms, snack bars and retail sale of clothes. The last edition of “Termos” also included an article on transgender issues.

The last couple of nights on my second trip, I found a hotel room for half the price and which had double the space as it contained a large living room.  More Cubans stay here and there is less security. Some tourists may like the strict scanning of IDs and traffic control of the grandiose five star, which excludes its own people and at times treats the Cubans with utter disrespect. After a while, I found it suffocating. I forego the grand central fancy lobby of the Parque Central for the Plaza Hotel or a casa particular, a room in a private house.

On my first trip, in conjunction with my nonprofit, Art Helping Life (arthelpinglife.com), I brought a large suitcase filled with children’s clothes, shoes and stuffed animals for a group home of children whose biological parents are not capable of parenting. As a family lawyer, I greatly appreciated the lack of institutionalizing the children. A small group of lively children, eight to ten years of age, live in a pretty house on a suburban street with at least three caregivers. Family style living, with only two children in a bedroom and home-cooked meals, is the norm. At school, they are not ostracized or stigmatized because they live like everyone. I spent an afternoon with the children on the floor drawing and singing together.  I had a glow from the many hugs and smiles.  One girl, new to the home, stayed close to me, riding my hip like my own daughter, Jasmine did when she was two. The Santa Claus effect is avoided because the gifts are left in the car for the group leaders to distribute later so the children do not associate people visiting with material benefit.  Our group of good-spirited and social-minded lawyers collected funds and items for the children as well. Millie, originally from the Philippines, who has a successful immigration practice with her husband, Michael, delivered the funds to the group home. Austin, a financial advisor, who grows mango trees in Florida, acted as our unofficial accountant. Suzanne and Gerry brought a team’s worth of children’s baseball uniforms and gear. Wendy, a fellow Bennington grad, provided art supplies.  Grey, a commercial attorney in Alabama, organized his hometown, Mobile as a U.S. sister city to Havana. The donated funds were used for needed communal items for two of the group homes – fans, washing machines, and a bus for cultural excursions.  I met Ana and Jorge, two Cuban photographers who share their affectionate hearts and artistic talents with the children through their kids’ photo club. They spend time with the children every week.

Many Cubans impressively recognize a commitment to the “collective” good of the community, as teachers, artists, and doctors, even at the “official” pay of 20 CUCs per month (about US$25 per month).  Karenia has a degree from the University of Havana in swimming education and is dedicated to teaching children how to swim, even though her husband urges her to leave the school to make a full time beauty salon where she can earn more money.  Artists teach at the local schools and prepare pieces for the biennial art show.  Cuba has one of the highest literacy rates in the world (higher than the United States) and more doctors per person than anywhere in the world. The literacy campaign of the 1959 revolution worked. Young people and educated volunteers traveled to all parts of rural Cuba to teach the elderly and workers in the wetlands to read.  People do not pay rent or personal taxes. They obtain a modest food ration and free health care. Mansions and buildings of wealthy foreigners and Cubans who left Cuba after the revolution in 1959 were deeded to the families living in them or utilized for institutions of learning. Artists are given studios and materials to create.  The cultural and athletic life is rich and diverse.  Proper training, in sports, academics and the arts, is a priority.

Satire and irony is, at its best in Cuba, comparable to English wit on the London stages.  Dry humor with a message is a sign of an intelligent community. Critical thinking is alive and well in Cuba. I delightfully soak it up in the brilliant lithographs of Tomy Ortiz Sanchez of the Taller de Graphica Experimental workshop and the power point presentation of Professor Rafael Hernandez entitled, “Accepted Truths About Cuba.”  The intellectual discussions I have had with Cubans match those I was engaged in when I attended London School of Economics.  I was a political philosophy major and to once again discuss Hegel, Gramsci, Foucault, Nietzsche, and Kafka, was a thrill.

It was refreshing not to see McDonald’s arches on highways and Banana Republic and jeans ads glued on buildings. The mail in Cuba does not consist of glossy Victoria Secret catalogues or envelopes pushing credit cards to minors. It is not nirvana – sadly, young adults are smoking cigarettes. There is strict gun control and no evidence of personal crime. Domestic violence does exist especially mixed with alcohol, as car accidents after parties. There is no drug trade passing through to the U.S., like in Costa Rica.  The police can be difficult issuing tickets.  The human rights of LGBTQ people are spreading through the activism of Raul Castro’s daughter, Mariela.  Cuba was the first country in the Americas to legalize divorce and serial monogamy is the norm.  Judges include lay people. There is no begging in Cuba like I experienced in India and Guatemala.  There is not a mother in a straw hut with outstretched arms crying for me to be the madrilena (godmother) of her sick baby as I experienced in Bolivia in 1990.

Many Cubans have two jobs, one for the good of the country at a miniscule wage and then a second stream of income to make money for the family – such as through tips as a lawyer/ professional, tourism, farming or small business. Cubans have self respect. They will not bargain their price for their work or their art if the amount requested is lower than its worth. Sugar, nickel and tourism are some of Cuba’s greatest economic resources.  There is an official market and alternative markets. On a larger scale, the government is open to joint ventures. Canada, Spain, Brazil, and Singapore are doing business in Cuba. I predict the U.S. will become one of the biggest trading partners with Cuba when the U.S. lifts the failed policy of the embargo. The service sector represents sixty-three percent of the Cuban economy with nineteen percent being agricultural and seventeen percent being industrial.  For better (desired consumer items, business equipment, capital, and income) or worse (loss of a safety net, debt and materialism), Wal-Mart, Pfizer, American Express, MasterCard, Citibank, Coca Cola, Governor Cuomo, and even Chobani yogurt have had contact with Raul Castro and his administration or have recently visited Cuba. President Obama has declared that Cuba will be taken off the list of countries sponsoring terrorism which will open international banking and credit to Cuba.  The Roswell Park Cancer Institute in New York is waiting to import vaccines from Cuba to help their patients.

The internet exists in Cuba and is growing.  Twenty-five percent of the people have internet access and cell phones. People have gmail and facebook accounts, although some people can check it more easily than others. Only nauta.cu, the Cuban internet service is on the cell phone, but those who have access to a computer from work or a friend can get emails regularly. Service can be slow. For others, it is costly and more sporadic to go to an internet café and pay US$2.50 – $4.50 for an hour. The first free legal wi-fi has been provided by artist Kcho’s Cultural Centre which has close ties to Raul Castro.  Netflix will soon be available but expensive for the average Cuban.

At the Revolution Museum, the Bay of Pigs Museum, and on sporadic billboards at times throughout my travels in western Cuba, the actual black and white photos communicate the horrific and spotted history of the U.S. towards Cuba.  I also learned much from the Cuban economist, Professor Juan A. Triana Barros, the Cuban lawyer, Osvaldo Miranda Diaz and Canadian consultant, Gregory Binkowski who lectured our group.  I read every word of the detailed, Cuba Confidential: Love and Vengeance in Miami and Havana by New York Times journalist, Ann Louise Bardach.  Dictator Batista, American Corporations like the United Fruit Company, hand in hand with American gangsters like Al Capone and Myer Lansky, ignored conditions of extreme poverty and used Cuba like a private playground. Corruption was rampant. Any opposition to Batista was squashed, including the torture of university students.  The revolution by Fidel Castro, Che Guevara and Camilo Cienfuegos, who are legendary historic figures, was supported by the majority of the people. Fidel Castro did visit the U.S. during President Eisenhower’s administration and appealed to Nixon and Eisenhower for diplomatic and economic relations. Both turned their back on Fidel Castro and Cuba.  Numerous assassination attempts were made by the CIA to kill Fidel Castro and destabilize Cuba. The Soviet Union stepped in and financially supported Cuba until the 1990’s. When Russia withdrew four to six billion dollars of aid annually, Cuba severely suffered financially. The Cubans call it, “The Special Period.” Many young people have been trying to leave Cuba ever since.  Cuba now permits people to leave, but Cubans must wait for the US government to issue the visa.  Frank and Karenia want to join Frank’s father in Miami and try to raise their children in the U.S.  He is waiting over a year for the visa.  His friend just received the visa after waiting nearly two years. Should Frank’s friend sell his nice home in the suburb of Miramar, Cuba and his car or wait to see if it works out in the United States?  Frank said he will try to make it in the U.S. or go back and forth or return within five years permanently to Cuba if the United States proves too difficult. He makes more money than most Cubans as a tour guide and driver. His daughter, Rachel can bring her own food to school with more variety than the school lunch of rice, beans and maybe an egg.  Even the teachers, who do not have family members with second sources of income, wish they could eat Rachel’s lunch. The average urban Cuban does not eat the freshly grilled seafood, lobster and fish that exist in abundance at the hotels, the paladares and even the small restaurants by the Caribbean Sea like in Cojimar (where Hemmingway wrote “The Man and the Sea”).  I also visited Hemmingway’s former home, outside of Havana where his boat Pilar is anchored on land in the backyard.

Pork (Cedo) is well liked in Cuba and exists everywhere. I particularly liked the yucca with the chicarrón (crispy pork skin) crumbled on top, the sweet plantains (platanos maduros), and the just picked coconut, papaya, and a large orange fruit which is a tasty cross between a tangerine and mango. Yes, the aged Havana 7 rum, hard-rolled Cohiba cigars, and coffee are exquisite!

At the Miami airport, the Cubans living in Miami told me they now go back once a month or every two months to visit their family in Cuba and to bring large suitcases or packages stuffed with DVD(s), flat screen televisions, kitchen appliances, and even “Be Curly” hair conditioner.  A woman sitting next to me on the plane flying from Miami to Havana was very excited. She had just spent three months for the first time with her family in Miami and was returning home.  She showed me photos of her loving family in both places with comfortable homes in Cuba and Florida. She has pets in both homes, along with siblings, cousins and nieces. The large American supermarket impressed her and she had pictures of the long stocked shelves.  An estate attorney, Minnie and her wife, Denise, a retired police sergeant, came to Cuba with our lawyers’ trip to find Minnie’s childhood home.  Minnie, as a young girl, left Cuba with her family at the time of the revolution. She found her first home in Santo Suarez and was invited by the people living there to come in. It was a tearful experience.

Our group visited Jaimanitas, outside Havana where ceramicist Fuller has turned a bus stop and neighborhood houses into a whimsical tiled mosaic. It reminds me of Gaudi’s structures in Barcelona crossed with Alice in Wonderland in the East Village, NYC. We also visited the Nacional Hotel and the Habana Rivera Hotel, national monuments that preserve the art deco of the 1930’s down to the telephone booths and dinner plates, all in mint condition.

One cannot write about Cuba without highlighting the richness and diversity of its music. Music Professor Alberto Faya, with his nimble young pianist, took us on a sonar journey from the African songs of the slaves, to the classical Spanish guitar brought with colonialism to the Caribbean and Central American influences of Jamaica, Haiti, and Mexico to the salsa, rumba, jazz and reggaeton. The El Paridiso show included musical numbers, costumes and dance moves that were equivalent to Fosse’s Chorus Line and Motown on Broadway.  At La Zorro y el Cuervo, a small jazz club, I sampled Roberto Forensco and his band Temperamental. The percussionist, Rodriguez was so rhythmically tight and one of the fastest drummers I have ever seen, sticks flying, similar to Led Zeppelin’s or Prince’s percussionists as well as the Bahian drummers I saw in Salvador, Brazil.  I thought my night was complete, fully satisfied musically. However, the best was yet to come.  I met Giselle, an Afro-Cuban singer from Santiago de Cuba on the street in Vedado when I was waiting to enter the jazz club.  A beautiful and warm heart, we became fast friends, chatting in Spanish and a little English.  Giselle told me that she has a boyfriend (novio) in Macedonia and that she just returned from five years there.  Giselle pulled out her cell phone to show me pictures of her in the deep frigid snow. She told me she has her own apartment and was performing later that night at a tiny club next door to El Cuervo called Café Amour.  Very few Cubans know this place, never mind not a single tourist. Giselle pleaded with me to come. After the show was over at El Cuervo, I entered Café Amour. Giselle’s voice was Latin silk and African clicking all at the same time, throaty and melodic. I felt I could listen to her for hours. She called my name and city from the stage “Cheri, Nueva York, mi Amiga!”  I hopped up to dance and felt the sweet passion of Cuba running through my veins.

Ancient Yoruba practices with orishas (gods and goddesses) brought over by West Africans to Cuba during slavery are alive and well, and add significant depth and uniqueness to the spiritual culture, art, and music of Cuba. Such practices are called Santeria in Cuba, Candomblé in Bahia, Brazil and sometimes voodoo in New Orleans, Louisiana.  I visited Regla, Fort San Severino, and Callejon de Hamel where Santeria is explained or practiced. The surreal murals of Salvador Gonzales Escalona at Hamel in Centro Havana are inspired by Santeria. My favorite goddess is Yemanya, who wears the sky blue color and is the female protector of the sea. My favorite male god is Shango, who wears red and represents fire and power. All people have a male and female orisha like yin and yang.

A woman in Regla walking up a hill with two plastic bags of groceries, stopped when she saw me.  For some reason, we hugged and she holds my face inside her warm hands. My eyes tear. She reminds me of my deceased Jewish grandmother, Grandma Rae who would speak Yiddish to me and giggle with me for hours. There are approximately 1500 Jews in Cuba. I went to the historic synagogue in Havana with over 200 members. There is a photo of Steven Spielberg inside the synagogue, as well as bongos for the children’s Hebrew class. My grandfather, Rabbi Gus Sutter would have been pleased. Jewish organizations were among the first to get licenses to come to Cuba from the United States.

Cubans genetically are one to three percent Taino or indigenous. The Spanish killed the Taino men and took the Taino women.  Thus, you can see the remnants in the names of Cuban places, and in the genes and faces of the Cuban people.  Cuban people are also a mix of African and European ancestry.  Professor Marta Nunez pointed out that the Cuban characteristics of working hard and finding creative ways to survive are from our African heritage.

When I came home from my first trip, my dear father said to me, “you didn’t go to Veradero, where we spent our honeymoon.”  So on the second trip, for one day, I sank my feet into the golden sand shores of the Caribbean jewel in a disney-like setting of hotels, and horse drawn carriages.  I practiced my sparse French and Italian with the Europeans who listen to the alluring whisper to travel to Cuba during the frosty winter.  I visited Al Capone’s former stone and tile house, and the former mahogany filled mansion of the DuPonts, which the Cuban government has owned and been operating as a restaurant and golf course, respectively.  At the end of the day, I headed to a small side street where I ate ropa vieja (shredded meat in a tomato based sauce) with only Cubans.  I watched across the street as many Cuban women of many shades happily greeted each other with a kiss on the cheek.  My one regret is not rescuing a Cuban girl on the beach a couple years younger than my nineteen year-old daughter from the clutches of a portly bald, at least fifty-five year old Italian man.  He rubbed his large hand over her tiny leg like she was a porcelain doll.  She looked restrained and uncomfortable. I swam next to her in the ocean, we connected with half smiles but she did not volunteer any information about her situation and I did not ask.  Why didn’t I do anything?  It was the same feeling I have had when I did not buy a meal for a homeless woman on the streets of Brooklyn, as I was running for the subway so as not be late for a collaborative law meeting. It reminded me of the stereotype of the “tragic mulatta” symbolized in the play “Octoroon” by Brandon Jacobs Jenkins. Mulatto is a derogatory term stemming from mule.  There is the Spanish term “mestizo” or as my daughter is often labeled “bi-racial”.  The future of the majority in America is brown people and/or multicultural people like Cuba, President Obama and my daughter.

During my last couple of days in Cuba, I realized that I was there during the Panama Conference. I turned on the Cuban television channel. Aside from American cartoons in Spanish which I love, like “Pato Donald” (Donald Duck), I saw the images of the Venezuelan President on the streets of Panama more than images of Raul Castro. Some Cubans were frustrated about the inclusion of a former CIA man, Luis Posada Carriles, who was responsible for the murder of Che Guevara, in the civil delegation. Other Cubans were happy to see Obama and Raul Castro communicating in public and the inclusion of Cuban for the first time in several decades. At the Miami airport enroute to New York, I watched CNN.  In this historic moment, CNN was focusing on an old African-American man living in Cuba who over twenty-five years ago was accused of killing a police officer when he was a young activist for civil rights.  I returned to New York the night of April 11th and the next morning I picked up the Sunday, New York Times and a bagel with lox from Shelsky’s on the corner of Atlantic Avenue and Court Street, Brooklyn. On the front page of the New York Times was a photo of Raul Castro and President Barack Obama. The U.S. embassy is opening in Cuba.  Some Cubans are very happy about it, like Frank; other Cubans like the artists I met are more cautious, saying it could be dangerous.  One thing is certain, I will need to return to Cuba to find out the answer. I will also return to explore the east of Cuba, and to happily accept the invitations for a home-made dinner of my new Cuban friends.

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Divorce In The Digital Age Part II

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The Attorney – Client Digital Relationship

It is important for the attorney and client in a family law matter to establish the means of communication between lawyer and client. Are e-mails permitted at all hours? When will they be reviewed and responded to? With e-mail communication, it is imperative not to “send” too quickly. One must not only watch for auto-correct which changes words but also incorrect e-mail addresses, e-mails being sent to unintended parties, or a string of e-mails being erroneously sent because it is attached to a line of e-mail communication. Group e-mails can be particularly problematic in mediated or family cases. Pressing “reply all” may include the other spouse in the case, or all professionals that the original e-mail included. It is unethical and can have dangerous repercussions in a divorce case for one spouse to send his or her lawyer, the digital communication and attachments that were exchanged between the spouse and that other spouse’s attorney. Such information is confidential. The lawyer receiving such information may have a duty to notify the other spouse’s counsel and/or the court. The lawyer may seek to recuse him or herself from representing a client who obtained and sent such communications. If a family law attorney utilizes such attorney-client information, he/she may be sued, and face disciplinary action. Although face-to-face consultations and a personal referral may be best to find a lawyer, obtaining information concerning the legal process of divorce has changed. The internet has a vast amount of lawyer and legal websites, attorney reviews, blogs, e-books, apps, and videos. An office of court administration, bar associations and non-profit organizations also provide online information. There are apps that calculate child support and maintenance amounts, interactive worksheets and instant lawyers/matrimonial professionals that appear on a screen or respond digitally within minutes to your immediate questions. There are online support groups and chat rooms concerning divorce. Software has been developed and is available that assists parents and children post-divorce concerning communication, calendars, scheduling, coordination between two households, and the paying of children’s expenses. Of course, internet dating sites and apps for divorcees presents its own subculture of advantages and dangers.

Family cases involving divorce and custody contain sensitive and personal information. Whereas e-filing is permitted in most cases, New York State and other jurisdictions do not permit e-filing in matrimonial and family cases. The exchange of documents between lawyers and obtaining documents from clients is being done by flash-drives, dropbox, and attachments to e-mail. Hopefully the days of carting box loads of paper and killing trees are dwindling in matrimonial matters. Many judges are accepting parenting plans, briefs, and other submissions by e-mail even when there is no e-filing through the court system. It is also important to ascertain if a matrimonial law firm will be storing private client files in the cloud, and the level of security.

The Forensic Computer Expert

The divorce process has become most effective as a team approach. The original members of the team included the spouses and the attorneys. Thereafter, mediators, mental health professionals, accountants/financial planners, and vocational experts were added to address conflict resolution, psychological, tax, retirement and employment issues. The forensic computer expert is the newest member of the team. Computer forensics is a branch of digital forensic science concerning legal evidence found in computers or other digital storage media. The discipline involves similar techniques and principles to data recovery, but with additional guidelines and practices designed to create a legal audit trail. A computer forensic expert preserves, identifies, extracts, documents, and interprets computer data so that it can be used in a legal case.

Preservation of computer files concerning finances is usually required in a divorce case. During preservation, data identified as potentially relevant is placed in a legal hold. This ensures that data cannot be destroyed. Once documents have been preserved, collection is the transfer of data from a person or business to legal counsel and possibly a judge or mediator who will determine what computer files are relevant and not protected as attorney-client privileged material or attorney work product. The data will be provided to a spouse’s attorney if it is relevant and not protected. If a computer is considered a “family” computer, it is not considered private. One’s spouse will be permitted to obtain access to the files stored in that computer. The rational is that a home computer is similar to a file cabinet. In matrimonial cases there usually is full disclosure provided concerning finances. If financial information was inappropriately obtained by computer hacking the court might still permit the financial information to be a part of the case if such information was supposed to be exchanged.

The Futuristic Divorce

Custody disputes over pets has emerged, will pet robots be next? Will information from the family robot or computer chips appear in forensic psychological reports? How about space travel terms in parenting plans? Will mediators, judges, collaborative attorneys, and financial accountants be able to obtain financial records, research and legal documents with a “ blink of an eye” due to the internet and computer files appearing on contact lenses? We already have Google glasses, and Oculus glasses for virtual vacations. Hardware may become a dinosaur. With chips implanted in our walls, roads, and medicine cabinets, voice-activated information and images could appear anywhere. Gadgets are on the market, which provide access to the internet, digital information, and monitor health in watches, jewelry, clothes, and wristbands. Driverless cars and electromagnetic transportation may change the way we spend time with our children.

I remember twenty years ago fierce conflicts between spouses over who gets the family photos. With digital photography, such disputes are relics of the past. With 3D printers, programmable matter, and nanotechnology, exact replicas and new customized consumer items may be produced easily. Will the nature of marriage and relationships change personal bonding and the development of intimacy by an increasingly virtual connection?

Legal contracts concerning assisted reproductive technology and frozen embryos already exist. Will mental illness and special needs children lessen due to advanced genetic screening, neuroscience and use of stem cells and gene therapy? Will parents have to make decisions whether to utilize genetic and robotic enhancements to their children, which will increase intelligence, talent or physical ability? Currently, one is sometimes permitted to appear for a mediation conference, court appearance, collaborative session or deposition in a matrimonial matter by video conferencing. Perhaps in the future, holographic images of ourselves will be present. One thing is certain, science and technological advances will continue to impact family life and law.

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Divorce In The Digital Age Part I

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Social Media Can Be Harmful In Custody And Parenting Disputes

Photos and postings on Facebook, Twitter, Instagram and other social media sites can be used by your spouse, attorneys, and other matrimonial professionals to collect information, demonstrate irresponsible parenting, and instability. Disparaging remarks on the internet about the child’s other parent can show a failure to cooperate with the other parent. Failure to foster the child’s relationship with his or her other parent is a key factor in damaging children or losing custody. E-mails and text messages between parents, spouses, or significant others need to be done with care. They are often quoted or attached as exhibits in court documents or shown to mental health professionals in a family law matter. It may be best to be brief, informative, amicable, and firm in digital interactions with a difficult, explosive, or passive-aggressive person. A parent coordinator that monitors the e-mails and communication between parents is highly effective to reduce conflict. Many family lawyers/divorce professionals will advise people to stop social media during a custody or divorce situation so as not to inflame or compromise the already delicate and fragile family dynamics. It should be noted that in New York State and other states it is unethical for an attorney to anonymously “friend” their client’s spouse/other parent in a divorce or family matter.

One of the best uses of technology is to enhance the relationship between a geographically distant parent and child. Regular skype, facetime and other methods of video chatting has connected and sometimes cemented a child’s relationship with a parent, extended family and other people who are important to a child. We are a mobile society. Relocating or traveling for work or education is quite common. Real time video communication, seeing each other’s faces, or sharing a child’s favorite book is priceless when there is no other way to be physically together.

Cyber Abuse Is A Form Of Domestic Violence

Cyber attacks are not just against corporations like Sony. 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 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. Stalking can occur by GPS devices placed on automobiles to trace one’s movement and by cellphone transmissions. It is not uncommon for a spouse in a divorce case to not only intercept telephone numbers and phone records of incoming and outgoing calls, but also voice messages and text messages. Abuse can also be accomplished through “caller-id spoofing”. A person can falsely identify him/herself by attaining different phone numbers and then implicate a spouse or significant other in criminal activity. Connection of a cordless phone can be monitored and cell phones are used as listening devices. Spy phones can be set up to read one’s call logs and e-mails.

Computer hacking permits one to gain access to private computer files. Spyware allow one to take snapshots of another’s computer through remote access. Creating false profiles, 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.

The Child’s Voice, Technically Speaking

Most children and teenagers of today have grown up with the internet and smart-phones. They receive homework assignments by e-mail, research on-line, and utilize texting and social media sites like Facebook and Instagram to stay connected with friends and relatives. Skilled computer science kids and their websites have enhanced creative and artistic expression. The “nerd” has many times become the new rock star. Children of divorce may be more prone to feelings of stress, sadness, and loneliness due to the changes and conflicts in their families. Children of divorce may experience the loss of contact with a parent or be alone more often, physically and emotionally because their parents are preoccupied with the divorce or organizing their new lives. The children might isolate themselves in a virtual world rather than “IRL” (in real life). They may be more vulnerable to cyber bullying. They may become exposed to extreme sex on the internet, making it difficult for them to have healthy personal relationships. Sexting with strangers, on-line relationships, and creating virtual personalities that show oneself in destructive behavior can cause physical and psychological damage; can lead to legal/criminal problems and harm educational and career opportunities. It is the parents’ obligation to reach out to their children in a way so they don’t shut down and to get themselves and their children the psychological help to navigate the family through the divorce process. Parents need to monitor and participate in their children’s virtual world without interfering with their healthy peer friendships. Parents need to encourage children to participate in high “touch” not just high-tech. Affection, sports, meals and cultural activities with family and friends are essential. Parents should be a role model (which is hard during divorce) and not use their children’s computer or social media sites or any computer that the kids may obtain access to for romance, pornography or communications they wouldn’t want their children to see. The computer savvy children of today can and will find digital information quite easily about you or what you are watching on-line.

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The Benefits of Prenuptial Agreements And How To Do Them Right

http://www.divorcedmoms.com/articles/the-benefits-of-prenuptial-agreements-and-how-to-do-them-right

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NYSBA Family Law Review | Spring 2014 | Vol. 46 | No. 1

Determining “Custody” of Beloved Companion Pets in Matrimonial Actions

By Sherri Donovan

Trisha Murray and Shannon Travis had a short marriage—marrying in 2012, filing for divorce in 2013. They had no children, few assets and their sole dispute was over who would keep Joey, their miniature dachshund. In Travis v. Murray, (1) Justice Matthew Cooper issued a 19-page decision, which ordered the parties to appear for a one-day hearing to determine which party would win possession of the dog. The judge would apply a “best
for all concerned” standard following the hearing, thus departing from strict property analysis traditionally used for possessory disputes over animals, yet falling short of engaging in a full-fledged child custody analysis.

In 2011, a year before their marriage, Ms. Travis purchased Joey at a pet store and brought him home to the couple’s shared apartment. When Ms. Murray moved out in 2013 while Ms. Travis was away on a business trip, she took with her a few pieces of furniture, some personal possessions and Joey. When Ms. Travis asked for Joey’s return, Ms. Murray claimed she had lost him in Central Park.

One month later, Ms. Travis proceeded to file for divorce. Two months later, she brought a motion seeking an account of Joey’s whereabouts and an order directing that he be returned to her “care and custody” and that she be granted “sole residential custody of her dog.” Ms. Murray revealed that Joey was not in fact lost, but rather living with her mother in Maine.

In her papers, Ms. Travis argued that Joey was her property because she had purchased him with her own funds prior to the marriage. Further, she stated that she was the party who had provided primary financial support for Joey. Ms. Murray replied that Joey was her property, as Ms. Travis had purchased him as a gift for her as consolation after she had given away her cat at Ms. Travis’s insistence. Ms. Murray also stated that she, too, had contributed financially to Joey’s care.

While Ms. Travis asserted that she was the party
who had cared for Joey on a primary basis, Ms. Murray countered that Joey slept on her side of the bed and that she was the one who “attended to all of Joey’s emotional, practical and logistical needs.” Ms. Murray concluded that it was in Joey’s “best interests” to be with her mother in Maine, where she could visit him regularly and where he is “healthy, safe and happy,” adding that Ms. Travis traveled often for work.

In his November 29, 2013 decision, Justice Cooper noted that both parties invoked two distinct approaches in determining which one should be awarded Joey: tradi- tional property analysis, i.e., ownership stemming from purchase or gift, and child custody analysis, whereby core custody concepts such as primary caretaking and best interests were called into play.

The judge engaged in a thorough analysis, referencing cultural articles in New York magazine and the New York Times that discuss the “humanification” of our pets and the important role that dogs play in our emotional lives (2) and citing research detailing the ever increasing amount of time, money and attention that household pets receive in the United States. (3)

Following a review of New York case law, Judge Cooper noted that while the New York magazine and New York Times articles prove that New Yorkers consider their pets as far more than mere property, prevailing New York law continues to treat a dog as just that—specifically, as “chattel.” (4)

In most non-matrimonial actions regarding ownership and possession of dogs, unless a dog is a pure-bred show dog, the most an owner can expect to recover for negligent care of or failure to return a dog is the animal’s fair mar- ket value. The aggrieved owner would pursue an action for “replevin,” where the standard is defined as superior possessory right in the chattel, thus based solely upon the property rights of the litigants, rather than their respective abilities to care for the pet or emotional ties. (5) Cooper notes only one New York case where temporary possession of a dog was granted to a wife in a matrimonial action, which decision was based solely upon the fact that the dog was an interspousal gift to her. (6)

Yet a few New York cases showed that courts were willing to acknowledge the importance of pets beyond that of ordinary, inanimate property. In Corso v. Crawford Dog and Cat Hospital, Inc., (7) the plaintiff recovered damages beyond the market value of the dog whose remains were wrongly disposed of by a veterinarian, holding that “a pet is not just a thing but occupies a special place somewhere in between a person and a personal piece of property.” In Feger v. Warwick Animal Shelter, (8) the court observed that “companion animals are treated differently from other forms of property. Recognizing companion animals as a special category of property is consistent with the laws of the State.”

Justice Cooper then engaged in a nationwide survey of the analyses utilized in pet-related disputes, finding that while there were a small number of cases that actually used the term “custody” when making an award of a dog to a spouse, (9) the majority of cases from other jurisdictions have declined to extend full-fledged child custody precepts to pet-related disputes, such as the “best interests” standard. (10)

Finally, Justice Cooper turned to the most relevant New York case, Raymond v. Lachmann, (11) to inform his decision, a case involving a dispute over the ownership and possession of an elderly cat named Lovey. The First Department wrote:

Cognizant of the cherished status ac- corded to pets in our society, the strong emotions engendered by disputes of
this nature, and the limited ability of the courts to resolve them satisfactorily, on the record presented, we think it best for all concerned that, given his limited life expectancy, Lovey, who is now almost ten years old, remain where he has lived, prospered, loved and been loved for the past four years.

From here Justice Cooper finds the standard he would apply to the Travis v. Murray matter: “best for all concerned.” He notes that the concept of a household pet being treated as mere property is outmoded and that the court in Raymond offered a perspective for determining possession of a pet that differs radically from traditional property analysis. Yet, while the factors in the decision included concern for the animal’s well-being and the relationship that existed between the cat and the person with whom he lived, the court stopped short of applying a traditional “best interests” child custody standard. The judge states that it is impossible to truly determine what is in a dog’s best interests and that the subjective factors that are key to a best interests analysis—particularly those concerning a child’s feelings or perceptions—are unascertainable when the subject is an animal.

Judicial resources are also cited as a major concern in limiting the scope of the standard applied in pet-related disputes. A court needs a tremendous amount of information in child custody disputes, often necessitating the appointment of an attorney for the child and a forensic psychologist, collateral interviews, testimony, and possibly in camera proceedings with the children themselves. Justice Cooper notes that our court system is already overwhelmed with child custody cases and to allow full- blown “dog custody” cases in which the same “best interests” analysis is applied would further burden the courts to the detriment of children.

Cooper also recognizes the reality that significant judicial resources are already devoted to matters such
as who gets a luxury car or second home, and therefore room should rightly be made in order to give real consideration to a case involving a treasured pet.

Accordingly, Justice Cooper granted the parties a
full one-day hearing, where he would apply a “best for all concerned” standard. Each side would have the opportunity to prove why she would benefit from having the dog and why the dog would have a better chance of living, prospering, loving and being loved in her care. The judge advised the parties to address questions such as: Who bore the major responsibility for meeting Joey’s needs (feeding, walking, grooming, trips to the veterinarian)? Who spent more time with Joey on a regular basis? Why did Ms. Travis leave Joey with Ms. Murray at the time of separation? Why did Ms. Murray send Joey to live in Maine with her mother rather than have him stay with her or Ms. Travis in New York?

The judge made it clear that the hearing would result in only one party retaining sole possession of the dog and that he would not entertain any kind of joint custody or visitation arrangements, which would result in both par- ties remaining involved in the dog’s life, thus inviting post-judgment litigation. Again, Justice Cooper voiced his concern that judicial resources in cases of pet disputes be limited, stating that “while children are important enough to merit endless litigation, as unfortunate as that may be, dogs, as wonderful as they are, simply do not rise to that level of importance.”

Shortly after receiving the decision, Ms. Travis and Ms. Murray settled privately with the aid of their attor- neys. Rhonda Panken, Esq. represented Ms. Travis and
I represented Ms. Murray. While the hearing was ulti- mately unnecessary, Justice Cooper has indeed crafted a thoughtful and thorough analysis that should help both courts and practitioners deal more successfully with dis- putes over beloved pets in the wake of a divorce.

Endnotes

  1. 42 Misc 3d 447 (Sup Ct NY Co 2013).
  2. John Homans, The Rise of Dog Identity Politics, New York, Feb. 1, 2010; Gregory Berns, Dogs Are People, Too, New York Times, Oct. 6, 2013; Alexandra Zissu, After the Breakup, Here Comes the Joint- Custody Pet, New York Times, Aug. 22, 1999.
  3. Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. Am. Acad. Matrim. Law 1 (2006); Derek Thompson, TheAtlantic. com, These 4 Charts Explain Exactly How Americans Spend $52 Billion on Our Pets in a Year, http://www.theatlantic.com/business/ archive/2013/02/these-4-charts-explain-exactly-how-americans- spend-52-billion-on-our-pets-in-a-year/273446/(Feb. 23, 2013).
  4. See Mullaly v. People, 86 NY 365 [1881]; Schrage v. Hatzlacha Cab Corp., 13 AD3d 150 (1st Dept 2004); Rowan v. Sussdorff, 147 App Div 673 (2d Dept 1911); ATM One, LLC v. Albano, 2001 NY Slip Op 50103[U] [Nassau Dist Ct 2001].
  5. See, e.g., Jason v. Parks, 224 AD2d 494 (2d Dept 1996); Mercurio v. Weber, 2003 NY Slip Op 51036[U] (Nassau Dis Ct 2003); Merriam v. Johnson, 116 App Div 336 (1st Dept 1906); LeConte v. Lee, 35 Misc 3d 286 (Civ Ct, NY County 2011); Webb v. Papaspiridakos, 23 Misc 3d 1136[A], 2009 NY Slip Op 51152[U] (Sup Ct, Queens County 2009); Saunders v. Reeger, 50 Misc 2d 850 (Suffolk Dist Ct 1966).
  6. C.R.S. v. T.K.S., 192 Misc 2d 547 (Sup Ct, NY County 2002).
  7. 97 Misc 2d 530 (Civ Ct, Queens County 1979).
  8. 59 AD3d 68 (2d Dept 2008).
  9. See e.g., Juelfs v. Gough, 41 P3d 593 (Alaska 2002) (granting “sole custody” of a dog to ex-husband); Van Arsdale v. Van Arsdale, 2013 WL 1365358, *4 (2013), 2013 Conn Super LEXIS 574 (granting “joint legal custody” of dogs, with “principal place of residence” to plaintiff); Placey v. Placey, 51 So3d 374 (Ala Ct Civ App 2010) (awarding dog to one party, expressly referring to the “best interests” of the dog).
  10. See e.g., Desanctis v. Pritchard, 803 A2d 230, 232 (Pa Super Ct 2002) (declining to award “shared custody” of a dog because he is “personal property,” such as a table or lamp); Clark v. McGinnis, 298 P3d 1137 (Kan Ct App 2013) (declining to award custody of a dog, holding that the “argument that child custody laws should be applied to dogs is a flawed argument”).
  11. 264 AD2d 340 (1st Dept 1999).

NYSBA Family Law Review | Spring 2014 | Vol. 46 | No. 1

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HOW TO DIVORCE A MISSING OR ABSENT SPOUSE

How do you get divorced when you have no idea where your spouse is and cannot contact him? While it may be require some additional steps, it can still be done: 

  1. The first step is to attempt to serve your spouse with a divorce Summons and Complaint, thereby initiating the action and providing notice, at his or her last known address(es). 

  2. Send a letter to all branches of the Armed Forces, Election Boards, Department of Motor Vehicles and Post Offices where your spouse was last known to reside. These letters may require a small fee, generally ranging from $3 to $5 each. 

  3. Search the internet in an effort to locate your missing spouse.

  4. If you receive no response and still have no information as to your spouse’s whereabouts, your attorney will need to prepare an Order for Publication for the court, which should be submitted to the courthouse’s ex parte office for a judge’s review and signature.

  5. The Order should include documentary proof of your search attempts, an affidavit signed by you wherein you explain why you cannot locate your spouse, and an affirmation signed by your attorney. The Order should also include the name of a local newspaper where your Summons for Divorce can be published for notice.

  6. Once the judge signs the Order, the Summons for Divorce will be submitted to the local newspaper for publication as directed by the court, typically for three consecutive days.

  7. Following publication, the newspaper will provide you with an affidavit attesting to its publication of your Summons for Divorce. You can then file uncontested divorce papers with the court and proceed with the divorce.

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PARENTING IN THE 21ST CENTURY: TERMINOLOGY & MULTIPLE PARENTING

Parenting in the 21st Century: Terminology & Multiple Parenting

             The traditional key terms regarding the care of children in family law — “custody” and “visitation” — seem increasingly outdated and in fact detrimental to positive outcomes. These terms imply competition, winning and losing, ownership and possession, and a diminished, stigmatized parental status, tending to exacerbate the threats to fragile egos and psyches during a period of divorce or separation. 

            The child’s needs should be the beginning and end point in any dispute between co-parents. Defining terms that imply collaboration may help keep the focus on the issues rather than inspiring parents to fight and enter into unnecessarily bitter and damaging custody battles so as not to feel like he or she is losing “custody” of the child. Use of a parenting plan that sets out a schedule without use of the term “visitation” normalizes the concept of a child sharing time with each parent, living and spending time with each parent at certain times. This is as opposed to one parent being deemed the “custodial parent” with the other being permitted “visitation” of the child, which gives rise to a painful feeling that one parent’s status has been devalued. 

            Use of a wheel or spheres may also be helpful, setting out categories or types of decisions that parents will need to make as joint caretakers. Focus again stays with the issues, tasks and roles involved with the care of the child, rather than on which parent wins the title of legal custodian. If parents are unable to engage in true joint and collaborative decision-making, one option is to grant each parent certain spheres for which he or she is primarily responsible. One parent may be granted primary decision-making over issues relating to extra-curricular activities and education, while the other is in charge of health care decisions and religion.   

In each case, the child’s particular needs remain paramount and the terminology utilized reinforces the concept that each parent remains responsible for the child even though the child is now dividing his time between households. 

The child’s particular needs and situation should be taken into account when creating a tailored parenting plan.  The parenting schedule and assigned roles and tasks can be revisited on an annual basis, with the aid of a parenting coordinator or other neutral professional if need be. 

Another increasingly outdated concept is that a child cannot have more than two parents. Traditional state law recognizes individuals as parents based on biology, marriage or adoption—bright line rules intended to promote stability. As a result of complicated and often unfortunate real life situations, but also advances in assisted reproduction technology, many states are faced with situations where the bright line rules that may not serve the child’s actual needs. 

Many people are arranging to have children with a third party via assisted reproduction technology. The parties may or may not be married, there may be a surrogate or donors, and donors may or may not be known.  While some couples seek a traditional “nuclear family” model of two parents, with the egg or sperm donor having no parental rights, some couples may intentionally seek out a known donor who will play a regular role in the child’s life. The donor may also have a partner who is involved with the child. 

How does a court decide if it should recognize a social parent (e.g., a lesbian mother’s partner) or a biological parent (e.g., a sperm donor)? 

A 2011 California case (In re M.C., 195 Cal. App. 4th 197 [2011]) involving a biological mother, her same-sex partner and a known biological father who had an affair with the biological mother led to an appeals court ruling that a child could not have three parents — even though both the biological mother and her same-sex partner were not immediately capable of caring for the child and she was placed in foster care. The ruling was followed by legislation, signed by California governor Jerry Brown in early October 2013, which allows children to have more than two parents. 

California Senate Bill 274 authorizes a court to recognize more than two parents if not doing so would be “detrimental” to the child. The measure applies to families with more than two people who fulfill California’s definition of “parent”, not to other caretakers or relatives. Some have expressed concern that the bill would make it possible for children to have too many parents—four, six, even eight—potentially creating impossibly complicated legal and emotional ramifications. However Sen. Mark Leno and other supporters of the bill stressed that that the law was to be used only when a child could be at risk of having too few parents and thus unnecessarily entering the foster care system. 

For many years, Louisiana has provided by statute and case law that a child may have two fathers and a mother where the mother’s husband is not the biological father. (La. Civ. Code, Art. 134; Smith v. Cole, 553 So. 2d 847 [La. 1989]). 

            Courts in Pennsylvania and Maine have also recognized that a child can have more than two people with all the rights and responsibilities of parentage. In Pennsylvania, a court upheld an award of primary custody to a biological mother’s same-sex partner, with partial custody to the biological mother and sperm donor, who had been involved as a parent since infancy. The court also found that all three parents had an obligation to support the child (Jacob v. Shultz-Jacob, 2007 PA Super 118, 923 A2d 473 [2007]). In Maine, a court found that a non-biological parent could have all the rights and responsibilities of parentage in addition to two legally-recognized biological parents (C.E.W. v. D.E.W., 2004 ME 43, 845 A2d 1146, 1149-51 [Me. 2004]). 

            As in California, Delaware and the District of Columbia allow a child to have more than two people with all the rights and responsibilities of parentage by statute. (Del. Code Ann. Tit. 13, Secs. 8-201; D.C. Code Sec. 16-831.01, et seq.) In D.C., people are allowed to sue for child custody if they can show they had acted as “de facto parents”. In Delaware, state courts have the ability to designate a non-parent as a “de facto” parent if the biological parent of the child fosters a “parent-like” relationship between the non-parent and the child and the de facto parent acted like a parent and bonded with the child in a way that is “parental in nature.” 

            Again, in navigating this increasingly complicated terrain, it is important that the child’s needs remain the beginning and end point in any disputes. While it is already challenging for courts to help two parents agree how to raise their child following a divorce, the law must also recognize a court’s need to recognize the real bonds and roles that have developed in a child’s life, even when non-traditional, especially when the child’s wellbeing is at risk.

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