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Legal Briefs

By Judge Joan Skhane

This is a continuing discussion of Legal Myths and Reality, because an informed citizen is always the most successful citizen:

MYTH: Trial level courts in New York State handle trials and decisions of cases that are brought to them. Once a decision is made, the case is over (unless appealed).

REALITY:  In addition to basic decision making, Family and City Courts in our state have specialty parts and programs that continue to assist until the lives of those participating are changed for the better, or it becomes clear that the court’s work is not bearing fruit.  

Some of these specialty courts are: Adult Family Treatment Court (handled through Family Court and City Court when drug addiction is a defining issue.  The penalty for failure in the court can be removal of children from the addicted parent or a jail sentence); Juvenile Treatment Court (this court was in existence across the state for approximately ten years and was handled through Family Court.  The goal was to help drug-addicted children change their lives and habits.  

This court was discontinued about four years ago because of poor success rate.  It seems juveniles’ brains are not developed sufficiently until about age 25 to be able to apply the same principles to a juvenile that a court would apply to an adult.  

The establishment and discontinuance of this court is an example of the Court System’s flexibility in attempting to address individual needs); Veterans Court (handled through City Court to assist veterans in finding employment, a home, and fulfilling other needs); Senior Attorney Program (a program wherein retired attorneys give free legal advice and representation to those who qualify); Domestic Violence Court (handled through Supreme Court whenever a charged person has a case in two or more courts on the same issue, to avoid overlapping courts and to prevent differing outcomes from different courts); Elder Justice Navigator Project (a pilot program in Chautauqua County  to provide education to the courts and community and make legal and other referrals for older adults in order to remedy and avoid elder abuse and exploitation.  

This court recognizes that only one in twenty cases of elder abuse is reported, and that special attention is needed to solve elder issues).  All of these courts and programs are aimed at a particular societal problem and work to improve the plight of those caught in these problems.  There are no set rules on when the case in any of these courts is concluded.  

MYTH: The issue of whether or not a judge should set bail for an accused individual is long settled.

REALITY:  This is an issue that has been debated in the U.S. for over forty years, and is far from settled.  After an accused is arrested, usually the accused sees a judge or justice within 24 hours.  The judge/justice can hold the accused in jail until trial or plea if the accused may flee.  In the alternative, the judge can release the accused with his/her promise to return. 

 A third option, more in the middle, permits the judge/justice to release the accused, but requires that the accused put up money or property that will be forfeited if the accused does not return to court (this is called “bail”).  There are nine different types of bail.  A judge/justice must consider a number of factors in making a decision on bail.  However, some people believe that the bail system is unfair to the poor, and favorable to the wealthy.  In 2017, about 33,000 accused in New York did not have the money or property to post bail in any form and they remained in jail, at least in part because they were poor. This is true even though none of these persons were convicted of any crime.  

Others, like Harvey Weinstein, for example, handed over a check for $1 million as bail during his first appearance, and was released.  Ideally all accused could do so, but this is not in the real world.  Bail reform is a priority in New York State, and in many other states to attempt to fashion a fairer way of treating accused.

New York State bondsmen are tightly regulated.  However, some have been accused of failing to return the property or money put up as collateral and of charging illegal fees to accused poor.  One bondsman lost his license because he charged up to $1000 for “courier costs”, whatever that is.   On the other hand, they serve an important purpose and at no cost to taxpayers.  

MYTH:  A stepparent may require a child to use the name “Mom” or “Dad” in referring to the stepparent.  A parent may prohibit this.

REALITY: Neither parent nor stepparent may make this a requirement.  A child has few rights of self-determination, but this is one of the few rights.  If the child is old enough and mature enough to make that decision then the child may not be forced to do so or not to do so.  The focus is on the child’s rights.  A stepparent must, however, recognize that he/she is not taking the place of the child’s biological parent and cannot take over the parent’s role as a decision maker in a joint custody arrangement.

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

Utica Phoenix Staff
Utica Phoenix Staffhttp://www.uticaphoenix.net
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