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Legal Myths and Reality with Judge Shkane

By Judge Joan Shkane

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH: If a child is taken permanently by one parent without the consent of the other parent to another country, such as Canada, Europe, Asia, South America or anywhere else, there is nothing that can be done.

REALITY:  There is much that can be done, but may require patience and money for lawyers in several countries.  The Hague Convention on Civil Aspects of International Child Abduction is a very powerful tool that can be used under certain circumstances to force the child’s return to the previous country of residence.  Every country that has signed the Hague Convention must return a child promptly if the child was wrongfully taken from the child’s country of habitual residence.  “Wrongfully taken” is when the child is removed by one parent without the consent of the other parent.  The problem sometimes is deciding what is the child’s country of habitual residence.  Although this phrase is in the Hague Convention 15 times, the Convention does not define ”habitual residence”.

The standard previously was that the habitual residence is the country where the parents have together intended at some time in the past that the child should live.  Some courts would look at the facts surrounding the child’s presence in a particular country to decide what the parents intended.  This requires looking into the parents’ minds at the time of bringing the child to the new country.  Some reasons may be permanent or temporary employment, escaping hardship and threat to life in the former country, or joining family members.

Other courts would look to see if the child has become “acclimatized” to the new country, that is, is the child familiar with and thriving in the new country.  This requires looking into the child’s mind to determine the level of comfort with the new country. Some facts may include the child having friends in the new country, comfort with a new school or medical providers,  aptitude with the new language, other family members in the new country, and religious affiliation in the new country.

An issue arises about which should be more important, the parents’ minds or the child’s.

Now the United States Supreme Court has decided the issue.  The Court said that each lower court must use the totality of circumstances as a guide.  The circumstances are different in each case.  A court must consider the age of the child, who is the primary caregiver, and the intentions and circumstances of the parent who is the primary caregiver.  And all of this must be decided with a strong dose of common sense.  However, the child’s comfort with the new residence is to be given much importance.   

MYTH:  Courts are stuck in a rut in the past, and therefore cannot adapt easily to new circumstances, such as pandemic.

REALITY: Our courts all across the country are very flexible, can adapt quickly to changing circumstances, and are petri dishes of experimentation.  One recent example is the use of Zoom to conduct grand jury proceedings.  Several states have experimented with this, and have reported different results.

Grand juries in criminal cases are secret proceedings intended to protect the public from overzealous prosecutors.  They arise from medieval English law and they occur early on in a criminal case.  The grand jury can hear testimony, examine some proof, and can also conduct an investigation.  All of this is to decide if a crime has been committed and if a particular person, persons, or organization committed the crime.  If the answer is yes, then the grand jury will hand up an indictment to the Court, and the case will proceed.  If the answer is no, then there will be no charge.  The prosecutor is required to record who is present at all times, and to moderate the presentation.

Arizona and Texas, foremost among many U.S. states, recognize the legal challenges of being in the middle of a pandemic, and that the public must still be protected from crime.  They also recognize that people who may have the cloud of suspicion over them are entitled to be exonerated, if that is appropriate.  Since part of the beginning of the process is the grand jury, without which one path to proceed is closed off, a rural county in Arizona ordered a grand jury to sit by Zoom.  Each member had to appear in person to be sworn in, and those who did not have access were given laptops. They were also given a choice to appear by Zoom or in person. The foreperson had to appear in person to sign any indictments. Generally, about half of the jurors chose Zoom.  In Arizona they met for about three months and indicted 276 people.

Immediately defense counsel objected, as they should if doing their job properly.  The arguments for “Wi-Fi” indictments include speeding the process up, keeping jurors safe from the virus, and helping to overcome geographical distance in rural areas.

Arguments against include that the indictments are not constitutional because they did not have an in-person quorum, and that there is no guarantee of secrecy.  Even with headphones and a private dedicated place in the home, anyone in the vicinity can see and hear the proceedings.  As importantly, anyone in the room can see all the other jurors, so that their privacy and secrecy is not protected.  The proceeding may also exclude potential jurors who do not have internet access or are not Zoom savvy.

New Jersey has experimented with Zoom and found objection by both prosecutors and defense counsel.  New York explored the possibility of using Zoom, but decided state law would be violated.  Their particular issues were tech access, and the impossibility of guaranteeing secrecy.  Courts are figuring out how to deliver justice in the time of pandemic.  New York City grand juries just recently starting hearing cases after five months, thereby avoiding the issue of Zoom grand juries for the time being.

MYTH: In law, as in life, there is only one way of doing things.

REALITY:  There can be many ways to handle events and in governing.  In New York City, as in many New York State cities, the power to appoint police commissioners and hire and fire police officers belongs to the mayor of the city.  The New York State Attorney General believes that many New Yorkers have lost faith in law enforcement, and that the divide between officers and the public must be bridged.   Some argue that when a mayor appoints the police commissioner, chief of police and officers, this links the political fortunes of the Mayor and City Hall to the Police Department.  She believes that police departments in New York are wrongly treated differently from all other governmental agencies, are not subject to legislative oversight, and can make rule changes without a public hearing.  She believes that police agencies should not police themselves.  The Attorney General believes that an independent commission should be appointed to handle these acts, thereby taking them out of the hands of politicians.  The commission could include appointees of each common council, mayor, county attorney or city attorney and city comptroller.  She notes that Detroit and San Francisco have similar arrangements, and they successfully handle police issues.   Many police agencies call this recommendation unnecessary and political.

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.


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