"If the judges interpret the laws themselves, and suffer none else to interpret, they may easily make, of the laws, [a shredded] shipman's hose!" - King James I of England, around 1616.

“No class of the community ought to be allowed freer scope in the expression or publication of opinions as to the capacity, impartiality or integrity of judges than members of the bar. They have the best opportunities of observing and forming a correct judgment. They are in constant attendance on the courts. Hundreds of those who are called on to vote never enter a court-house, or if they do, it is only at intervals as jurors, witnesses or parties. To say that an attorney can only act or speak on this subject under liability to be called to account and to be deprived of his profession and livelihood by the very judge or judges whom he may consider it his duty to attack and expose, is a position too monstrous to be entertained for a moment under our present system,” Justice Sharwood in Ex Parte Steinman and Hensel, 95 Pa 220, 238-39 (1880).

“This case illustrates to me the serious consequences to the Bar itself of not affording the full protections of the First Amendment to its applicants for admission. For this record shows that [the rejected attorney candidate] has many of the qualities that are needed in the American Bar. It shows not only that [the rejected attorney candidate] has followed a high moral, ethical and patriotic course in all of the activities of his life, but also that he combines these more common virtues with the uncommon virtue of courage to stand by his principles at any cost.

It is such men as these who have most greatly honored the profession of the law. The legal profession will lose much of its nobility and its glory if it is not constantly replenished with lawyers like these. To force the Bar to become a group of thoroughly orthodox, time-serving, government-fearing individuals is to humiliate and degrade it.” In Re Anastaplo, 18 Ill. 2d 182, 163 N.E.2d 429 (1959), cert. granted, 362 U.S. 968 (1960), affirmed over strong dissent, 366 U.S. 82 (1961), Justice Black, Chief Justice Douglas and Justice Brennan, dissenting.

" I do not believe that the practice of law is a "privilege" which empowers Government to deny lawyers their constitutional rights. The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government”. Lathrop v Donohue, 367 US 820 (1961), Justice Black, dissenting.

"The legal profession must take great care not to emulate the many occupational groups that have managed to convert licensure from a sharp weapon of public defense into blunt instrument of self-enrichment". Walter Gellhorn, "The Abuse of Occupational Licensing", University of Chicago Law Review, Volume 44 Issue 1, September of 1976.

“Because the law requires that judges no matter how corrupt, who do not act in the clear absence of jurisdiction while performing a judicial act, are immune from suit, former Judge Ciavarella will escape liability for the vast majority of his conduct in this action. This is, to be sure, against the popular will, but it is the very oath which he is alleged to have so indecently, cavalierly, baselessly and willfully violated for personal gain that requires this Court to find him immune from suit”, District Judge A. Richard Caputo in H.T., et al, v. Ciavarella, Jr, et al, Case No. 3:09-cv-00286-ARC in the U.S. District Court for the Middle District of Pennsylvania, Document 336, page 18, November 20, 2009. This is about judges who were sentencing kids to juvenile detention for kickbacks.

Saturday, May 15, 2021

The New York "confederate flag" custody decision - what was that?

I have taken my time to post my comments regarding the New York child custody decision where the Appellate Court ruled based on a confederate flag painted on a rock located on the property rented by the mother.

Read news media articles regarding this decision - but did not find what is most essential in this decision that is plain to any attorney who has handled 1. Family court custody cases and 2. appellate cases (and I did both).

First of all, there are certain rules in Family Court and in the Appellate Court that courts simply MUST follow - and which were not followed in this decision.

Rule # 1 - dealing with pro se parties

  • the court MUST be super-cautious when dealing with a pro se party (a party not represented by an attorney), and ESPECIALLY when 
  • such a pro se party is a party in an appellate case where - as appellate clerks of this particular court have been explaining to pro se parties (who communicated with me as a blogger on this topic) that any appellate case is too complex too argue/handle by a pro se party; AND even more especially when
  • such a pro se party is the RESPONDENT in the case, defending an appellate case AGAINST AN ATTORNEY representing the appellant -
as it happened in this case.  The case lists:

"Andrea J. Mooney, Ithaca, for appellant", and

"Jason Leifer, Ithaca, attorney for the child".

That's all.  Appellant is the (black) father, respondent is the (white) mother - respondent is NOT represented by an attorney, so the court had to have been extra cautious not to violate mother's constitutional right to care and control of her child.

Rule # 2 - the court, both trial and appellate, decides PRESENT cases (not future cases)

Rule # 3 - the Family Court decides cases based on the balance of 1. constitutional rights of parents to care and control of their children and 2. best interests of the child

Rule # 4 - separated parents presumably have joint legal custody of their child, UNLESS the court rules after a trial that

  • one parent has committed something so bad towards the child that he/she should not have joint legal custody - and a say in educational/medical/religious decision-making towards the child, or
  • parents cannot effectively communicate regarding decision-making about the child

Rule # 5 - the exclusive function of the Appellate Court is to decide/resolve issues raised in the complaint/appeal of the party pointing out supposed errors of the trial court.  

Rule # 6 - courts (trial or appellate) may not act as advocates for either party - there is a due process (federal and state constitutional) requirement of court impartiality

With these rules in mind, lets look at the decision.

The child's year of birth is 2014.  She was 4 at the time of the trial in Family Court (pre-school) in 2018 and 7 at the time of the appeal - 2nd grade in school.




Beginning of the case

Joint legal custody


50-50 between the parents

Requested in petitions of parents

Sole custody – by both parents

Father – asked for permission to take the child out of the school district


Position of attorney for the child


Mother’s residence should be primary residence – trial court agreed, appellate court changed that

At the end of the trial case

Joint legal custody

50-50 between parents, mother’s residence is primary residence (after a home study and at the request of attorney for the child)


At the end of appellate case

Joint legal custody

50-50 between parents, current school district is “primary residence”;

The trial court is directed to take into account the confederate flag on a rock on mother’s RENTAL property in FUTURE court cases – a SUA SPONTE decision of appellate court (issue not raised by the appellant)


The trial court has had a trial/hearing on the case.

The footnote says that it did not hold a "Lincoln hearing" (judge talks to the child with the child's attorney present, but without the child's parents or their attorneys) because at the time of the trial the child was too young (4).

What is very important in these cases is the position of the appointed attorney for the child.  

Courts usually pay a lot of attention to the position of the attorney for the child.

In this case the attorney for the child was ON THE MOTHER's side.

The trial court was thorough in this case, it has ordered a home study that confirmed that, after mother moved 5 or 6 times during the child's life, currently she has, though rented, STABLE HOUSING.

Moreover, when the child lives with the mother, she also lives with her 2 siblings - courts try not to separate siblings.  There father does not have other children living with him who are the child's siblings, at least, the court decision does not mention any.

So, what do we have here?

Parents had - by default - joint legal custody of their 4-year-old (at the time of the trial) daughter.

Father wanted to take the child out of the school district and petitioned the court to CHANGE the custody arrangement to SOLE custody for him (so that the father could make decisions regarding the child's education, religion and medical care unilaterally, not together with the mother).

Mother also wanted SOLE custody of the child for herself, without moving.

The trial court DENIED both petitions for sole custody.

The appellate court affirmed/supported the trial court's decision to deny both petitions for sole custody and agreed with the trial court that JOINT LEGAL AND RESIDENTIAL CUSTODY for the child (as it was before court proceedings) is proper.

The appellate court has only corrected the trial Family Court on one issue:

" we do find that the portion of Family Court's order directing that the mother's residence shall be the child's primary residence for the purpose of where the child attends school must be modified. Although the general idea of preserving the child's current school district has a sound and substantial basis in the record, as it will preserve stability for the child, basing the child's school district on where the mother resides may lead to instability in the future due to the mother's frequent moves in the past. "

So, in the past, mother moved "3 or 4 times", so now the Appellate Division fixed the current school district for the child which neither of the parents may change without 

  • a mutual agreement, OR
  • a court order - if there is no mutual agreement.
So far - so good, right?

Sounds fair, doesn't it?

But now comes the woke part.


"Finally, although not addressed by Family Court or the attorney for the child, the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway. Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance. Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother's right to display the flag (see generally People v Hollman, 68 NY2d 202, 205 [1986]), if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis.

Egan Jr., J.P., Aarons, Reynolds Fitzgerald and Colangelo, JJ., concur.

ORDERED that the order is modified, on the law, without costs, by reversing so much thereof as directed that petitioner's residence shall be considered the child's primary residence for school purposes; the child shall attend school in the Dryden Central School District until further court order or a mutual agreement between the parties with respect thereto; and, as so modified, affirmed."

Recall the rules governing actions of the appellate court that I have referred to at the beginning of this article:

  • being extra careful with a pro se respondent;
  • ruling for the best interests of the child;
  • deciding only the complaint of the appellant regarding errors of the trial court;
  • deciding only the current case, not future cases
  • not acting as an advocate for either of the parties - the duty of court impartiality.
Here is what the Appellate Division focused on:

" the mother's testimony at the hearing, as well as an exhibit admitted into evidence, reveal that she has a small confederate flag painted on a rock near her driveway"

There is no indication in the decision that mother owns the property, so the property is rented, and claiming that "she has" a rock with a confederate flag painted on it near the driveway of her rented property is not a correct legal statement - the rock could belong to the landlord and placed where it was by the landlord.

Next, the court says:

"Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child's best interests".

The appellate court has made a determination that something in what the mother supposedly does is not in the child's best interests - but does not change joint legal custody or residential 50-50 custody between parents.

The court says that:

"Given that the child is of mixed race, ... the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance".

I doubt that judges themselves understood what they have written here.

What is "cognitive dissonance", what is a "tortured lens", what constitutes "a mixed race identity", how to "embrace" it - nobody knows, it is all a subjective judgment of the 5 judges:

(a former Family court judge, and a member of the Family Court Rules Advisory Committee for 7 years)

These 3 men and 2 women, one of them a "mixed race" from "West Indies" have created a precedent for 28 counties

for parents of "mixed race" children - that such parents MUST teach their children "to embrace their mixed race identity" - whatever, again, it is, and however this "embracing" must be handled.


Note that these 5 men and women, once again, supported DENIAL of petitions to BOTH parents - the joint legal custody that the parents had of the child before they filed petitions in Family court and that the trial court left in place, the Appellate Division also left in place.

So - the Appellate Division has decided THE CURRENT case - which is THE ONLY case it could decide - by leaving the state of custody UNCHANGED.

So, why then did it even go into the excursion into the supposed obligation of the white mother to "encourage and teach the child to embrace her mixed race identity" and into the convoluted woke wording about "thrusting" the child "into the world" that "only makes sense through a tortured lens of cognitive dissonance"?

Why would the court teach the unmarried mother who is not living with the unmarried father about the painted rock on a rented property "inflaming an already strained relationship between parties" - while, again leaving intact the JOINT LEGAL custody of the child between those same parties?

What good is this sermonizing under such circumstances?  For what purpose was it meant?

Here it is:

"while recognizing that the First Amendment protects the mother's right to display the flag , if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and Family Court shall factor this into any future best interests analysis."

The mother's LANDLORD is not a party in the Family court case.

It may be not the MOTHER's right to display whatever on the rented property, but the LANDLORD's to have that painted rock on his or her property - and with a prohibition for the tenants to do anything about it.

The mother only rented the house and has no control over the land or what is on it.

The court has found no evidence that it was THE MOTHER who has placed the rock on the rented property.

What the court is pushing the white mother of 3 young children who has FINALLY got a confirmed stable housing to do - during a pandemic and eviction ban, no less - is these options:

1. either engage in CRIMINAL MISCHIEF (a crime in New York presupposing jail time - and then the mother will lose custody of all of her THREE young children) and remove property of landlord off rental property, or

2. MOVE out of that stable housing - again, during the pandemic and eviction ban, with all 3 of her young children - OR lose custody of her daugher.

WTF, excuse my exquisite French?

Do these judges who have 200+ thousand dollar salaries at our expense understand WTH they are telling this woman to do - and the legal implications of what they are telling her to do?

All for the purpose of getting into the headline as the most woke judges in the woke state of New York?

I guess, discriminating against white parents of biracial children is all woke in the State of New York now, the law or basic concepts of fairness do not have to apply.

And remember - this is against a PRO SE Respondent white mother on appeal, who could not properly even defend herself, where the appellant black father was represented by an attorney.


And may not give directions to the Family Court how to decide FUTURE proceedings in this case.

Nor may the Appellate Division PRACTICE LAW (prohibited to judge by the NY State Constitution), act as an advocate for one of the parties (the represented-by-attorney black father) and give LEGAL ADVICE to the father and his attorney as to what to do next - file a yet ANOTHER petition against the mother to yank custody from her because she did not commit a crime of criminal mischief, did not remove a rock that does not belong to her off the rental property and did not move with her 3 young children, leaving behind the confirmed stable housing - without regard whether she can afford the move or not?

Once again, WTF?  Is THAT "the law" in these 28 counties?

Are these judges professional lawyers?

The sad part is, after this appellate level, the mother - especially that she is pro se - has NO RECOURSE to appeal this decision any further as of right.

It is a unanimous decision, so the New York State Court of Appeals won't take it - especially that it has unilaterally (and unlawfully) changed the New York State Constitution making it mandatory jurisdiction for the top state court to take up cases with constitutional issues raise - their "policy" (that they are not authorized to make) is to view mandatory jurisdiction as discretionary/on their whim.

The U.S. Supreme Court's jurisdiction is also discretionary (on a whim), preparing a case for that court requires jumping through so many hurdles that it is unthinkable that a pro se mother of 3 young children will be able to do that.

Federal courts have a judge-invented "Rooker-Feldman doctrine" barring civil rights lawsuits based on violations of federal constitutional rights by state courts, and a judge-invented "Family court doctrine" barring such lawsuits on a 2nd ground.

Access to international courts for Americans complaining against their own government violating their human rights is blocked by the way the US ratified the International Covenant for Civil and Political rights.

The only hope is that the trial judge will "factor in" this "change of circumstances" in a way defying the racist woke 3rd Department ruling rough-shod over the law and parental rights of white parents.

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