by Judge Joan Shkane
This is a continuing discussion of Legal Myths and Reality, because those informed are the most successful.
MYTH: New York State fathers in all situations have the same rights as mothers.
REALITY: Up to recently this was not true. Now the New York State Governor has signed the Parental Equity Act. This new law secures rights for biological fathers who are not married to the mother of theirchild, and who contest their child’s adoption by a third party.
Prior to this law the biological father of a child could contest an adoption of his child only if he had kept a certain level of contact with the child, and paid child support. However, such a father was not entitled to a court hearing on those issues to determine what actually happened with the child. Those who support the new law say that the previous law put undue burdens on fathers that did not exist for single mothers and for married but separated fathers. They say that under the old law mothers and fathers
were treated unequally. They further say that the prior laws were outdated and based on an assumption that if the father was not married to the mother, he was not going to be involved in his child’s life regardless of which parent made the decision not to marry one another. The new law recognizes that modern fathers can be as involved with their children as the mothers, married to one another or not.
Under the new law a father who has never been married to the child’s mother, can take steps to protect his legal right to a relationship with his child, and can enforce those rights by a hearing in court. This can effectively block an adoption by a third party. The organization New York Attorneys for Adoption and Family Formation oppose the law because they say that it would make adoption proceedings more complicated, lengthier and expensive for the adoptive parent, and that that cannot be helpful to the
child. Unmarried fathers applaud the law.
MYTH: The issue of mandatory COVID 19 vaccination in New York State is settled.
REALITY: This is a continuing issue as more information becomes available about COVID 19 and its variants. In mid-2021 the State Legislature gave emergency power to the Governor to deal with the ongoing crisis of COVID. That power continued until June, 2022. The same month in mid-2021 the New York State Health Commissioner, as part of the Governor’s administration, made the requirement to be vaccinated permanent for healthcare workers. The Commissioner said in effect that those who are vaccinated are less likely to develop serious illness, be hospitalized or die than those unvaccinated.
Further, the Commissioner believed that vaccinations helped reduce transmission of the early variants of the virus. The U.S. Centers for Disease Control and Prevention agrees with these principles. They
note, however, that breakthrough infections occur and are more likely with more recent variants of the virus, and are less effective therefore in reducing transmission of later variants. Nevertheless, they assert that vaccinations continue to reduce serious illness, hospitalization and death. They point to various studies to support their findings.
In December, 2021, the U.S. Supreme Court refused to block the requirement that healthcare workers be vaccinated.
The Medical Professionals for Informed Consent, some of whom lost their jobs or were at risk of losing their jobs in the medical field because they refused the vaccination brought a lawsuit against New York State.
The case was assigned to Syracuse judge Gerard Neri. Judge Neri sided with the Medical Professionals for Informed Consent’s position. He ruled that only those vaccinations that are specifically stated in
New York Public Health Law can be the subject of a requirement to vaccinate. Some of those are mumps, measles and hepatitis. He said that the power to impose the COVID mandate belongs to the Legislature, and not to the Governor or the Governor’s administration. Therefore, it is null, void and of no effect.
The State contends that the mandate was not irrational or unreasonable and was backed by other court decisions. The State also contends that the Legislature may give such emergency powers to the
Governor to deal with an ongoing health crisis, as happened in this case.
The State has not yet announced if it will appeal Judge Neri’s decision to a higher appeals court. Stay tuned.
MYTH: Our criminal legal system was invented from the time of the start of our country.
REALITY: Our legal code is based on the English Common Law, which was developed in England after 1066. However, because the Romans were in England and Wales for about 400 years starting around 43 A.D., the developing English law was influenced by four main principles of Roman law. These are: 1. A charged person is innocent until proven guilty; 2. The accused can face their accuser; 3. The accused can offer a defense and is entitled to a trial; and 4. Guilt must be proven “cleaner than daylight”. (We say “beyond a reasonable doubt”, which is the same thing).
All these principles are amazing, but development of the first one is almost unbelievable! It seems natural that if I accuse you of a crime, and you deny doing it, then you should be expected to show proof that you did not do it. For instance, if I say that you hit me, you may say “I did not and my neighbor will tell you that I was not even there”. And yet, the Romans, with their brilliant law codes, reversed the natural process by requiring that I prove you were there and hit me. Until then, you are presumed to be innocent. We have adopted this principle and have maintained it for over 2000 years! Why fix a
principle that is not broken! What an amazing advancement of justice!
For comparison, Mediaeval Wales worked differently. An accused could deny the charge under oath, and then find a certain number of persons to swear under oath that they believe the oath of the accused. The issue is not what the witness saw or knows but whether the witness believes the accused to be honest. This is called compurgation. For a homicide, the accused had to find 300 people who would swear to the accused’s honestly. If you once lied as a compurgator, you could never be called again.
Attention to legal myths can be important. They can be a starting point for developing an interest in the law. However, if specific legal issues are important in your life, for instance, regarding custody of 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.