Author Archives: Joshua R. Katz

Cryogenically Frozen Embryos, In Vitro Fertilization & Divorce

Cryogenically Frozen Embryos, In Vitro Fertilization & Divorce by Joshua Katz

{3:13 minutes to read} In relation to divorce—or, for that matter, even a prenuptial or postnuptial agreement—how can you resolve the custody issues of frozen embryos? 

In New York, one thing is clear: The New York courts do not recognize these zygotes, gametes, or pre-embryos as persons. They do not have constitutional rights; therefore, this is a property consideration. I’m not making a political statement about the right to life, etc. In fact, the only state that treats them as people and gives them any kind of rights is Louisiana. 

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The Art of the Prenuptial Agreement: Part 2

The Art of the Prenuptial Agreement: Part 2 by Joshua Katz

{2:30 minutes to read} In our previous article, we discussed prenuptial agreements. With this basic understanding of a prenuptial agreement and its function, this article will expand that foundation, as well as address some shifting trends in the way the courts are responding to prenuptial agreements.

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The Art of the Prenuptial Agreement: Part 1

The Art of the Prenuptial Agreement: Part 1 by Joshua Katz

{3:05 minutes to read} “I want a prenuptial agreement.”

What a fiancee actually hears: “I want to marry you, but I kind of don’t believe that our marriage is going to last, and therefore I want to protect myself when we decide to divorce.”

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Mentally Ill Until Proven Innocent? A Frequent Issue in Custody Cases

Joshua Katz - Mentally Ill Until Proven Innocent? A Frequent Issue in Custody Cases{3:00 minutes to read} Allegations of mental illness, noncompliance with psychiatric medication, psychological treatment or therapy are frequent concerns among feuding parents in custody cases. A clearly relevant issue, the court will often need more information about the parties and their mental status.

However, HIPAA laws and the concern over privacy makes obtaining mental health records and entering them into evidence very challenging.

Obtaining Medical Records

When mental health is made an issue in a custody case, a subpoena should be issued to the service provider(s).

Most often, the mentally ill spouse will not want confidential information entered into evidence and will refuse to sign consent or a HIPAA release form allowing the provider to share records.

As a result, a motion must be made to the court. The court will then determine whether the importance of the records to the best interests of the child(ren) outweighs the privacy concerns of the protected party. If so, the court will issue an order stating “pursuant to NY MHL §33.12(c)(1), the interests of justice significantly outweigh the need for the patient’s confidentiality.”  

When this order is issued by the court, the mental health provider is no longer violating privacy laws by releasing records to the courteven if their patient instructs them not to release the records.

Despite this, many providers are still reluctant to share records. Although HIPAA violations are no longer an issue, there remains a valid concern about the ongoing status of the clinician-patient relationship if records are divulged against the patient’s will. With this in mind, providers often do not release records.

This leaves the litigant, and the Court, with no evidence and no viable way of obtaining records to prove the mental health status of the other parent. Unfortunately, this is quite common. At this point, however, the judge can take a negative inference from the failure of the accused mentally ill parent to provide records.

In other words, the judge can assume the allegation of mental illness is true despite the lack of evidence.

Mental Illness & Custody Cases

Mental illness is really no different from other types of illness. With treatment and medication compliance, there is often little effect on parenting ability, judgment, or reasoning. A person with mental illness may be perfectly capable of handling their child and, with the proper care, asymptomatic.

Still, for many, there is a stigma attached to mental illness (although it’s been said that half of America is on Prozac, and the other half should be!).

Doctors do not like to talk about their patients, nor do mentally ill people want to discuss their problems. Frequently, a mentally ill person is not cognizant of how their illness affects their ability to make decisions or parent effectively. When a person does not accept their level of illness, it is even more difficult to obtain records from doctors and prove in court.

The Take-Away

HIPAA makes obtaining records as evidence increasingly complicated.

For the practitioner, HIPAA violations are avoidable when the court determines that the importance of the records outweighs privacy concerns. Still, the doctor is not a party to the action and cannot be ordered to produce records—the right to do so is discretionary.

In lieu of proof, a negative inference can be made, and the allegation of mental illness might be assumed to be true. Contact us to discuss this in more detail or if you have any questions about how allegations of mental illness affect custody cases.


Plaine & Katz, LLP
80-02 Kew Gardens Rd.
Suite # 1050
Kew Gardens, NY 11415
718-268-0279
Website: PlaineKatz.com
Email: josh@plainekatz.com, mark@plainekatz.com

How Non-Traditional Marital Finances Affect Your Divorce

How Non-Traditional Marital Finances Affect Your Divorce by Joshua Katz{3:30 minutes to read} Every married couple handles their finances differently. 

In a traditional marriage, you, as a couple, have joint bank accounts, pool your incomes into one account, and pay household bills out of that account. You both know what’s in the bank and whether you are saving or losing money each month. When it comes time for tax season, you file joint tax returns. You know each other’s income, and things are fairly simple when it comes to divorce. 

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It Is in Your Child’s Best Interests to Settle Custody!

It Is in Your Child’s Best Interests to Settle Custody! by Joshua Katz

{2:15 minutes to read} Parents who are battling for custody in a divorce proceeding need to focus on their children’s interests—and settle

Parents know their children better than anyone else in the world. And so, it is important that both parents work together to craft a custody arrangement that is best for their child. And settle! 

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Pets Are People, Too!

Pets Are People, Too! by Joshua Katz

{4:30 minutes to read} “Decidedly more than a piece of property”—pet owners would categorically agree that their pets are indeed family.

In a recent decision in the case of Travis v. Murray, Judge Matthew Cooper of Manhattan said that Joey, a mini Dachshund, was “decidedly more than a piece of property,” allowing for a brief best interest hearing to determine custody of the family dog post-divorce.

The hearing determines which “parent” will provide a better home environment for the dog and be more apt to allow the other “parent” the ability to foster a continued relationship with Joey. 

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Jewish Custody Determinations by the Secular Court

Jewish Custody Determinations by the Secular Court by Joshua Katz

{8:00 minutes to read} “When a person has a judgment adjudicated by gentile judges and their courts, he is considered a wicked person.” Rambam, Hilchos Sanhedrin, 26,7.

As a custody litigator, my cases invariably involve litigants whose emotions run high while they battle over who is the most appropriate parent. An extra layer of complication comes into play when the secular courts are confronted with issues of religious observance as they affect the best interests and moral wellbeing of children. While the secular courts cannot make rulings based upon their interpretation of religious dogma, the courts are invariably faced with situations where they must assess the religious practices of the parties in reaching a decision as to issues of custody and parenting rights.

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Gratitude & Pride: Reflections on My Career Choice

Gratitude & Pride: Reflections on My Career Choice by Joshua Katz

{4:30 minutes to read} March 25, 2016, was a typical, average day, but it was significant for me. It was one of those rare days that confirmed that I love what I do.

I was in court handling three (3) cases where the court had to determine the best interests of three (3) very distinct children. Despite the very challenging and heart-rending circumstances to which I am privy on a daily basis, I am proud when my job makes a difference in the world — as a child advocate.

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