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Today's Law: December 27, 2016 - Alienating Child's ffection and Custody, Changes to Foil and Access to Digital Assets
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December 27, 2016
by Frosyth & Forsyth
Update on the Forsyths
2016 has been a blessed year to the Forsyths. On October 23 Don (the father of Scott and George) turned 95. On August 21 Henry was born to Tyler (son of George) and Gail. Caitlin (daughter of Scott) is engaged to be married to Benn Kireker. To celebrate, we all came together the end of October for a wonderful dinner at Don’s house overlooking Lake Ontario. The only discouraging note was the loss of the Bills the next day to the dreaded Patriots.

Alienating Child’s Affections and Custody
The best interests of a child determine which parent obtains custody of a child during a divorce. The preference is for joint legal and physical custody with the actual parenting time alternating during the year.
Joint custody works best when both parents communicate with each other and make decisions together. Also essential is the parents’ promotion of each other to the child. When one parent does the opposite, runs down the other parent thereby alienating the affections of the child for the other parent, that can be a basis for a change in custody.
A recent case out of Greene County vividly illustrates this situation. Following a divorce, a father moved to North Carolina. Shortly thereafter the ex-wife petitioned for sole legal and physical custody of their daughter, on the grounds the father physically abused the daughter.
A court appointed a psychologist to examine the parents and the daughter. The psychologist concluded the mother had “brainwashed, coached, and rehearsed” the daughter into believing that she was the victim of abuse. The daughter arrived at her sessions with a “laundry list” of accusations, used sophisticated language to describe the abuse, and could not offer details.
The mother could not produce any medical records or photographs to substantiate her allegations. She did not call the DSS hotline. The daughter’s teachers did not see any evidence of abuse.
The father filed a cross-petition, seeking sole legal and physical custody. The court granted his petition and denied the mother’s petition, citing the psychologist’s testimony. Sadly, the father will have to overcome his daughter’s hatred of him, no small task.

Changes to FOIL
New York’s Freedom of Information Law has been in the news lately.
This month the governor signed into law a bill which reduces the time, from nine months to two, a government agency may appeal an order compelling the disclosure of information. Agencies were too often waiting the full nine months to decide on appealing, thereby delaying the release of information.
Advocates claim the shortening will “improve (government) transparency.” We shall see.
FOIL presumes all agency records are public and thus accessible. It then lists eleven categories of records which may be denied, ranging from trade secrets to those constituting an “unwarranted invasion of personal privacy.”
Not mentioned is a twelve category–the information sought is not maintained as a record, in electronic or paper format. Many requests get denied for this reason.
Just because a record falls into one of the eleven categories does not mean the agency must not disclose it. The agency is free to do so or not do so. FOIL favors disclosure. Agencies are of the opposite mind-set.
A good example of the push and shove was the dispute between the Town of Irondequoit and the Democrat & Chronicle last year.
The town maintains a registry of vacant homes. The paper wanted a copy of the registry, which is clearly a record. The town denied the request, claiming the disclosure of the homes on the registry would “endanger the life or safety of any person,” a basis for not turning over a record.
According to the town, the paper was going to publish the addresses of the homes. Then vandals would know which properties, and which neighborhoods in decline, to target.
The paper sued and prevailed. Putting a vacant home on a list does not put the life and safety of a person at greater risk. One only has to look at the home to know it is probably vacant.

Access to Digital Assets
Digital assets, such as bitcoins, and electronic communications are here to stay. So, the question becomes, who has access to these items and under what conditions when you pass away? In 2015 the New York legislature answered with the Fiduciary Access to Digital Assets Act.
For starters, the law does not apply to work email. Thereafter, the law establishes a three-tier structure for access.
First is what the user/owner tells the custodian of the asset/communication, such as Google, in an “online tool.” Next is what the user/owner says in his power of attorney or will. Last is what the custodian provides in its service agreement.
The law distinguishes between the “content of an electronic communication” and the “catalogue of an electronic communication.” The former “refers only to information in the body of an electronic message that is not readily accessible to the public,” whereas the latter information is accessible.
The distinction is important. Absent some authorization by the user or a court order, a fiduciary, such as an executor, can only obtain the catalogue and not the content of electronic communications.
How you respond to the law depends on how much authority you want to give to a third party during your life and after your death. You may want to block access to content during life but allow access after death.
Filling out an “online tool” is the best evidence of intent. Therefore, you should check with the custodians of your email account and other assets to find out what tools are available.

If you have any questions about child custody, FOIL, digital assets, or any other matter, please contact us.


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Rochester, N.Y. 14614

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