Posts tagged with "attorney"

Is Warrantless Drug Testing in Our Schools Constitutional?

In a previous post, I discussed the lessened requirements of searches conducted by school officials, that of reasonableness under all of the circumstances surrounding the search. This is because the Supreme Court has recognized the need to balance a student’s privacy interests against the need for teachers and administration to maintain order and control over the classroom environment.[1] This framework works particularly well in the traditional sense of searching a student’s belongings, automobile, and even their school desks and lockers.[2]

What happens, however, if your school seeks to subject its students to random drug testing, without having reasonable suspicion to do so? This qualifies as a search, subject to the reasonableness standard, but “certain exceptions to the reasonable standard [exist], whereby your child may be subject to drug testing regardless of whether or not they are suspected of taking illicit drugs.”[3]

In 1995, the U.S. Supreme Court determined that random drug testing of student-athletes via urinalysis did not run afoul of the Fourth Amendment.[4] The Court articulated a three-part balancing test that must be used in determining whether a constitutional violation occurs in this context: the nature of the privacy interest upon which the search intrudes,[5] the character of intrusion,[6] and the nature and immediacy of the governmental concern and the efficacy of the means to meet it.[7] A school’s interest in combating student drug use has long been recognized. The Court reasoned that student-athletes have a further diminished expectation of privacy compared to regular students (consider communal showers and shared locker rooms) and noted the voluntary nature of participation.

Seven years later, the U.S. Supreme Court extended these principles to allow random drug testing of students who participate in any extracurricular school activities.[8] This includes chess clubs, band and choral ensembles, or even teams that participate in academic competitions. As my colleagues explained, “The circumstances surrounding a urinalysis test are no different than going to the restroom in a public facility, and a monitor is present only to make sure that your child does not tamper with the urine specimen,” a process that has been constitutionally upheld.[9]

So as a parent, what’s the take-away from this discussion? When your child wishes to participate in an extracurricular activity and the school intends to implement a suspicionless drug testing program, they may do so, but are required to adhere to the principles of Vernonia and Earls. In addition, it is comforting that the Court in Earls specifically articulated that access to the results is on a strict “need to know” basis;[10] in addition, schools are not permitted to either punish your child or hand over the results to the police.

Of course, the balancing test applied to drug testing renders a subjective analysis, and as such it is important to seek the advice of an experienced school law practitioner if your child is subject to one at his or her school.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school discipline, searches, or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

[2] Connecticut General Statutes § 54-33n.

[3] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., at 60.

[4] Vernonia School District 47J v. Acton, 515 U.S. 646 (1995).

[5] Id. at 654.

[6] Id. 658.

[7] Id. 660.

[8] Board of Education Independent School District No. 92 v. Earls, 536 U.S. 822 (2002).

[9] Id. at 833.

[10] Id.

Searches by School Resource Officers

On Searches by School Resource Officers: Are They School Officials or Police Officers?

It Depends.

In light of school safety concerns that have plagued the nation since the 1990s, resource officers have become commonplace our public schools. They are the collaborative effort of local police department and boards of education, serving a myriad of roles as educator, investigator, advisor, and a source of interaction and resource for students. However, what are the constitutional burdens imposed on a resource officer when he or she conducts a search of a student or the student’s property?

First, let’s rewind to 1985, when the U.S. Supreme Court held that while the Fourth Amendment in general applies to searches conducted by teachers or school officials, they are not held to the stringent warrant requirements that constrain police action. As further elaborated:

[T]he accommodation of the privacy interests of schoolchildren with the substantial need of teacher and administrators for freedom to maintain order in the schools does not require strict adherence to the requirement that searches be based on probable cause to believe that the subject of the search has violated or is violating the law. Rather, the legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search. Determining the reasonableness of any search involves a twofold inquiry: first, one must consider whether the … action was justified at its inception, second, one must determine whether the search as actually conducted was reasonably related in scope to the circumstances which justified the interference in the first place.[1]

In other words, school personnel are permitted to search student property (which includes purses, backpacks, and automobiles on school property) so long as the search is “justified at its inception” and permissible in scope. The search cannot be excessively intrusive. However, what the Court in T.L.O. declined to produce was “the appropriate standard for assessing the legality of searches conducted by school officials in conjunction with or at the behest of law enforcement agencies, and we express no opinion on that question.”[2]

Thus, we return to our original inquiry: because a resource officer serves functions both on behalf of the school and of the local police agency, what is the standard that applies? It does not appear that this question has been put to the test here in Connecticut, though other jurisdictions have progressively contemplated this scenario, and it boils down to three hypotheticals:

  1. School official initiates search/police involvement is minimal: reasonableness test applies.
  2. School resource officer initiates search on own initiative or at direction of a school official so as to “further educationally related goals”: reasonableness test applies.
  3. “Outside” police officer initiates search: warrant and probable cause requirements implicated.[3]

In determining the level of police involvement, various factors are considered:

[W]hether the officer was in uniform, whether the officer has an office on the school campus, how much time the officer is at the school each day, whether the officer is employed by the school system or an independent law enforcement agency, what the officer’s duties are at the school, who initiated the investigation, who conducted the search, whether other school officials were involved, and the officer’s purpose in conducting the search.[4]

Because of the lack of a uniform standard as promulgated by a Supreme Court decision, different courts have come to wholly divergent conclusions purely based on application of the above factors. In Alaniz, the North Dakota Supreme Court determined that the school resource officer involved was “more like a school official,” thus implicating the less stringent reasonableness standard.[5] Conversely, this past August the Washington Supreme Court ruled that “the school resource officer was not a school official and thus the more lenient standard of ‘reasonable suspicion’ applied to searches by school personnel did not apply.”[6]

Every instance of school searches conducted by resource officers is unique, and as such determining whether it was reasonable or implicated greater Fourth Amendment protections may be difficult without the assistance of an experienced school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions regarding school discipline, searches, or any other education law matter, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] New Jersey v. T.L.O., 469 U.S. 325, 341 (1985).

[2] Id. at 342 n.7.

[3] State v. Alaniz, 2012 N.D. 76, ¶ 10. See, e.g., T.S. v. State, 863 N.E.2d 362, 367-68 (Ind. Ct. App. 2007); Myers v. State, 839 N.E.2d 1154, 1160 (Ind. 2005); State v. Burdette, 225 P.3d 736, 750 (Kan. Ct. App. 2010); In re D.L.D., 694 S.E.2d 395, 400 (N.C. Ct. App. 2010); State v. J.M., 255 P.3d 828, 832 (Wash. Ct. App. 2011). Accessed October 4, 2012: http://www.ndcourts.gov/_court/opinions/20110259.htm

[4] Id. at ¶ 11. See T.S., at 369-71; Burdette, at 740; R.D.S. v. State, 245 S.W.3d 356, 368 (Tenn. 2008).

[5] Id. at ¶ 12.

[6] “Court Invalidates Backpack Search by School Resource Officer,” by Mark Walsh. Accessed October 4, 2012: http://blogs.edweek.org/edweek/school_law/2012/08/court_invalidates_backpack_sea.html

Student Speech Rights in the Information Age

For nearly twenty years, the First Amendment framework chiseled out by the Tinker[1]-Fraser[2]-Hazelwood[3] trilogy worked wonders in establishing whether student speech could be regulated. Though students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,”[4] school administrators have the authority to curtail or prohibit various forms of speech: that which would materially and substantially disrupt a classroom, is plainly offensive, or promotes illegal drug use. Educators may also exert editorial control over school-sponsored expressive activities, such as a school newspaper written by students.

As my colleague Bob, succinctly wrote, these cases were “once thought to provide parents and teachers with a viable and stable framework for reconciling student rights of free speech with educators’ rights to maintain good order and discipline.”[5] Technology, which we insist makes life easier, instead simply made things more clouded and ushered in a new battleground for student speech litigation.

Today, students are connected to each other through email, instant messaging, blogs, social networking sites, and text messages. An email can be sent to dozens or hundreds of other students by hitting ‘send.’ A blog entry posted on a site such as livejournal.com can be instantaneously viewed by students, teachers, and administrators alike. Off-campus speech can become on-campus speech with the click of a mouse.[6]

Thus, what happens when a student, who is neither on school grounds nor at a school-sponsored event, engages in speech critical of school administration? Does the school have authority to punish the student? The Second Circuit held the in the affirmative: quoting a decision rendered only two years earlier, the Court condoned discipline for speech or expressive conduct made off school grounds if the conduct “would foreseeably create a risk of substantial disruption within the school environment”[7] should the expression reach school grounds.[8]

Findings in other cases, however, are setting up the issue of disciplining off-campus student speech for a day in the U.S. Supreme Court, in large part due to conflicting decisions in the Appellate Courts.[9] Most recently on September 6, 2012, the United States District Court of the District of Minnesota, located in 8th Circuit, denied a defendant school district (and the defendant administrators) its motion to dismiss a lawsuit filed by a student who was punished for her off-campus speech.

In that case, using her personal computer at home, the student wrote on her own Facebook wall that she hated a school monitor because she “was mean to me.” For this, school administrators gave a warning. When the student thereafter posted a message that stated, “I want to know who the f%$# [sic] told on me,” again using her personal computer at home, she received a one-day suspension and was prohibited from attending a school-sponsored ski trip. Characterizing these posts as “a far cry from the statements made by the students in cases in which courts have approved of school intervention,” the District Court found that these statements “were not likely to cause a substantial disruption to the school environment.”[10]

While the foundations of student speech regulations are not yet set, it is important for students to realize that any electronic communication they send could potentially be viewed by anyone. All it takes is the recipient hitting the “Forward” button to send to unknown parties or “tattletaling” to a teacher or school administrator. As such, “[a]ny off-campus electronic communication relating or referring to students, teachers, administrators, or school activities has the potential to result in school discipline” and exclusion from participation in school activities.[11]

As a parent, controlling or monitoring your child’s electronic communications has become a highly difficult, if not impossible, task to fully accomplish. This is why it is imperative that you speak to your child about the ramifications of sending out messages they have no way to capture back and which may inadvertently come to the attention of school officials. Nonetheless, if your child is facing disciplinary action for off-campus conduct or speech, it is important that you are aware of your rights and consult an experienced school law practitioner.

Written by Lindsay E. Raber, Esq.

Should you have any questions about school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969).

[2] Bethel School District v. Fraser, 478 U.S. 675 (1986).

[3] Hazelwood School District et al. v. Kuhlmeier et al., 484 U.S. 260 (1988).

[4] Tinker, supra at 506.

[5] “Advocating on Your Child’s Behalf: A Parent’s Guide to Connecticut School Law,” by Joseph C. Maya, Esq., Esq, at 83.

[6] Doninger v. Niehoff, 594 F.Supp. 2d 211, 223 (D. Conn. 2009), aff’d in part and rev’d in part 2011 U.S. App. LEXIS 8441 (2d Cir. Apr. 25, 2011).

[7] Wisniewski v. Board of Education, 494 F.3d 34, 40 (2d Cir. 2007).

[8] Doninger, supra at 217.

[9] Compare Doninger, supra, with J.S. v. Blue Mountain School District, 2011 U.S. App. LEXIS 11947 (3d Cir. June 13, 2011) and Layshock v. Hermitage School District, 2011 U.S. App. LEXIS 11994 (3d Cir. June 13, 2011).

[10] R.S. et al v. Minnewaska Area School District No. 2149 et al, Civ. No. 12-588 (MJD/LIB). Accessed October 3, 2012: http://law.justia.com/cases/federal/district-courts/minnesota/mndce/0:2012cv00588/124914/28/

[11] Maya and Bob, supra at 92.

Suspension Rates of Minority Students in Connecticut Schools Remains Stagnant

Suspension Rates of Minority Students in Connecticut Schools Remains Stagnant, Despite Overall Decrease

An article released yesterday on The CT Mirror reported mixed news: while the overall rate of out-of-school suspensions decreased by nearly one-fifth during the 2010-2011 academic school year, “it has not diminished Connecticut’s racial disparity in the use of the discipline technique.”[1] Indeed, the rates at which African American and Hispanic students are suspended, compared to their white peers, are staggering: twice for the latter and thrice for the former. What makes these numbers worse, however, is their disproportionate character. African American students comprise of 13% of the total student population, yet received 39% of all suspensions. Likewise for Latinos, who make up 19% of the state’s student population, they received nearly the same proportion of suspensions (36%).[2]

Unfortunately, these figures provided by the State Department of Education are not anomalies. The Civil Rights Project at UCLA recently released a study focusing on the disparate impact of suspensions and expulsions as it related to various ethnic and racial groups, gender, and disability. One key finding (out of many) was the following:

National suspension rates show that 17%, or 1 out of every 6 Black school-children enrolled in K-12, were suspended at least once. That is much higher than the 1 in 13 (8%) risk for Native Americans; 1 in 14 (7%) for Latinos; 1 in 20 (5%) for Whites; or the 1 in 50 (2%) for Asian Americans.[3]

Connecticut was ranked the highest in suspension rates for Latinos at 14% – twice the national average – with the Hartford School District at a whopping 44.2% suspension rate (the highest district in this category nationwide).[4]

So what is the cause of such wide-ranging disparity, both here in Connecticut and nationally? Unfortunately, the answers are difficult to pinpoint. “Is it a matter of discrimination? Or is it a matter of behavior issues among certain populations? Either way, you still have a problem that needs to be dealt with,” stated Joe Cirasuolo, who is the executive director of the State’s superintendents association.[5]

However, the impact is less opaque: “Overreliance on out-of-school suspensions contributes to poor academic achievement, high dropout rates, and the staggering achievement gap between low-income minority children in Connecticut and their higher-income peers.”[6] Increased run-ins with the juvenile justice system also result, as evidenced by a 2007 report that “89 percent of 16 and 17-year olds involved with the juvenile justice system had been suspended or expelled from school.”[7]

Written by Lindsay E. Raber, Esq.

Because of the potentially adverse and significant impact an out-of-school suspension can have on a student’s future, it is imperative to seek the advice of an experienced school law practitioner if your child faces a suspension. Should you have any questions regarding school discipline or other education law matters, please do not hesitate to contact Attorney Joseph C. Maya, Esq. He may be reached at Maya Murphy, P.C., 266 Post Road East, Westport, Connecticut (located in Fairfield County), by telephone at (203) 221-3100, or by email at JMaya@mayalaw.com.


[1] “School suspension rates drop, but minority students still overrepresented,” by Jacqueline Rabe Thomas. October 2, 2012: http://www.ctmirror.org/story/17615/school-suspension-rates-plummet-minority-students-still-overrepresented

[2] Id.

[3] “Opportunities Suspended: The Disparate Impact of Disciplinary Exclusion from School,” by Daniel J. Losen and Jonathan Gillespie. August 2012: http://civilrightsproject.ucla.edu/resources/projects/center-for-civil-rights-remedies/school-to-prison-folder/federal-reports/upcoming-ccrr-research/losen-gillespie-opportunity-suspended-ccrr-2012.pdf

[4] Id.

[5] See Footnote 1.

[6] “Teaching Discipline: A Toolkit for Educators on Positive Alternatives to Out-of-School Suspensions,” by Alexandra Dufresne, J.D., Annemarie Hillman, Cari Carson, and Tamara Kramer. June 2010: http://www.ctvoices.org/sites/default/files/edu10discipline.pdf

[7] Id.

Court Gives Plaintiff in Bullying Case Green Light to Proceed to Trial

In August 2006 Robert and Louise Dornfried filed suit against the Berlin Board of Education, its former and current superintendents,  the principal, the athletic director and the coach of Berlin High School football team on behalf of their minor son, Robby.  Robby’s parents alleged on their son’s behalf that, while a student at the high school and a place-kicker on the varsity football team, he was subjected to “incessant bullying, harassment, intimidation and was the victim of threats and/or acts of violence” by his teammates.

The parents further alleged that they complained of the misconduct to various school administrators, who, despite their knowledge of the behavior, did nothing to stop it.  As a result, Robby was allegedly forced to seek “medical care and treatment” and, halfway through his sophomore year, transferred to Northwest Catholic High School. Robby’s parents brought suit alleging negligence against the various defendants, claiming they knew or should have known that Robby was subjected to incessant bullying, harassment, intimidation, threats and/or acts of violence, but failed to take any action to prohibit, prevent, or even deter such conduct.

In a separate count, the parents claimed the principal, the athletic director and the football coach were reckless in their failure to stop the inappropriate behavior of Robby’s teammates, claiming they exhibited “a blatant and utter disregard for [Robby’s] safety and wellbeing.”  Notably, as permitted by Connecticut law, the plaintiff sought punitive damages under this count. The defendants initially attacked the plaintiff’s suit filing a motion to strike the negligence claims.

Granting the defendants’ motion, the Court held that the principal of governmental immunity barred the negligence claims because, as a general rule, a municipal employee has qualified immunity in the performance of acts that are discretionary in nature.  Although there is an exception when the injured party is an “identifiable person subject to imminent harm,” the Court held that Robby did not fall within that exception, explaining the only identifiable class of foreseeable victims the courts have recognized is that of school children attending public schools during school hours.  The Court ultimately held that, although participation in school sponsored athletic programs is most likely encouraged, participation is on a purely voluntary basis and, therefore, any resulting liability is barred by the doctrine of governmental immunity.  Significantly, although Robby was foreclosed from pursuing his negligence claims, his claim under a theory of recklessness, allowing for the recovery of punitive damages, was left intact. More recently, however, the defendants filed a motion for summary judgment attempting to eliminate that cause of action as well.  The defendants essentially claimed that, with respect to the plaintiff’s recklessness count, there are no factual issues in dispute and that as a matter of law, they are entitled to a judgment in their favor.

The court denied the defendants’ motion, however, preserving the plaintiff’s case, as well as the potential for punitive damages.  Explaining its decision, the Court first noted that Robby’s parents alleged the defendants had actual knowledge of the bullying yet failed to act, resulting in further escalation of the bullying, and that the defendants knew their failure to act would result in further harm to Robby.  Significantly, the Court then explained that summary judgment should not be used in cases that concern important public issues or questions of inference as to motive or intent, or ones that involve subjective feelings and reactions.

Citing various factual disputes in this particular case, the Court ultimately held that it is “suffused with subjective impressions, intent, motive and pubic issues which do not easily conform to the standards of summary judgment.” This ruling is significant, in part, because, as mentioned, the plaintiffs alleged that the school system, as well as various administrators, were not just negligent, but were actually reckless in their failure to respond to the bullying in question, thus exposing the school system not only to actual or compensatory damages, but punitive damages as well.  This decision is also significant because, although there is always a potential that such rulings will be appealed, the Court effectively gave the plaintiffs a green light to proceed to trial.

By:       Michael DeMeola, Esq.

If you have any questions regarding a school bullying case, or any education law matter, contact Joseph Maya at 203-221-3100 or by email at JMaya@MayaLaw.com.

 

Connecticut School Districts and Bullying: What Can Parents Do?

I was greeted this morning with a very unfortunate email.  The email concerned bullying in Westport Schools and included a heart wrenching video of an 8th grade girl claiming to be a victim of bullying in Westport schools. (http://patch.com/A-gcKG) It is just not enough to feel sorry for this victim of bullying, we need to question the effectiveness of the current law and policies in place to avoid the tragic consequences that other towns have dealt with because their students were victims of bullying.

I previously blogged about the revisions to Connecticut’s law against bullying in 2008.  Under Connecticut General Statute section 10-222d, the law requires “any overt acts by a student or group of students directed against another student with the intent to ridicule, harass, humiliate or intimidate the other student while on school grounds, at a school sponsored activity or on a school bus, which acts are committed more than once against any student during the school year.” In addition to definitional changes, the statute requires:

  1.  teachers and other staff members who witness acts of bullying to make written notification to school administrators;
  2. prohibits disciplinary actions based solely on the basis of an anonymous report of bullying;
  3. requires prevention strategies as well as interventions strategies;
  4. requires that parents of a student who commits verified acts of bullying or against whom such bullying occurred be notified by each school and be invited to attend at least one meeting;
  5. requires school to annually report the number of verified acts of bullying to the State Department of Education (DOE);
  6. no later than February 1, 2009, boards must submit the bullying policies to the DOE;
  7. no later than July 1, 2009, boards must include their bullying policy in their school district’s publications of rules, procedures and standards of conduct for school and in all of its student handbooks, and
  8.  effective July 1, 2009, boards must now provide in-service training for its teacher and administrators on prevention of bullying.

Westport responded to the requirements of this statute with a comprehensive bullying policy which can be found on the school district’s website under the tab for parents, and then selecting policies.  Here is the direct link to the policy: (http://www2.westport.k12.ct.us/media/policies/prohibition_against_bullying_5131.911_revised_8.25.2008.pdf)

Armed with Connecticut’s law and Westport’s policy, what should we do as parents, community members, and professionals?  I do not profess to have the answers but at a minimum, we should discuss this with our children, question the school administrators, guidance staff and teachers. Together we should challenge ourselves to make a difference using the channels available to us.  There are ways that we can help to effectuate change before it is too late.  If you know of a child affected by bullying, please act on their behalf.  Not every student will post a video to tell you this is happening. If the school is not addressing the bullying in a meaningful way to eradicate the conduct, legal redress is available and the courts will readily intervene.

If you have any questions please feel free to contact me by telephone in the Firm’s Westport office at (203) 221-3100 or by e-mail at SMaya@Mayalaw.com. Attorney Maya is a partner at Maya Murphy, P.C. Her practice is limited to Education Law and Trusts and Estates.

Should I File my Family Law Case in Connecticut or New York?

With the mass exodus of New Yorkers amidst the COVID-19 pandemic from New York City to the more suburban lifestyle of Connecticut, the question of where to file family law case actions has been emerging quite frequently.  The first and most critical question that you need to know is whether Connecticut or New York has jurisdiction to hear the case.  In short, the court with jurisdiction retains the official power to make legal decisions and judgments on a case.  But the answer may not be clear-cut.  Here is what you need to know about family law jurisdiction in Connecticut and New York:

Which State Has Jurisdiction for My Divorce Action?

Generally, Connecticut has jurisdiction over a divorce action if one of the following conditions apply:

  1. You or your spouse has lived in Connecticut for at least one (1) year prior to filing for divorce, OR
  2. You or your spouse lived in Connecticut at the time of the marriage, moved away, and then returned to Connecticut, AND plan to live here permanently.

Similarly, New York has jurisdiction over a divorce action if one of the following conditions apply:

  1.  You or your spouse have lived in New York State uninterrupted for at least two (2) years immediately before the date you start your divorce action; OR
  2. You or your spouse have lived in New York State on the date the divorce action was commended for a period of at least one (1) year, AND one of the following conditions applies:
    1. Your marriage ceremony was in New York; OR
    2. You lived in New York State with your spouse as married persons; OR
  3. You or your spouse have lived in New York State uninterrupted for at least one (1) year immediately before the date you start your divorce action, AND your grounds for divorce occurred in New York State; OR
  4. You and your spouse are residents of New York State on the date you start your divorce action, AND your grounds for divorce occurred in New York State.

Which State Has Jurisdiction for My Child Custody/Visitation Action?

Generally, Connecticut has custody and visitation jurisdiction if one of the following conditions apply:

  1. Connecticut is the home state of the child at the time the custody/visitation application is submitted, and the child has lived in Connecticut for the last six (6) months, or from birth if the child is less than six (6) months old; OR
  2.  The child lived in Connecticut for the last six (6) months, but has been removed from Connecticut less than six (6) months ago by a person claiming to have custody of the child and a parent or guardian continues to live in Connecticut; OR
  3. The child and at least one parent has significant ties to Connecticut and substantial evidence exists in Connecticut concerning the child’s present or future care, protection, training, and personal relationships; OR
  4. The child is in Connecticut now and has been abandoned, or there is an emergency affecting the child’s well-being; OR
  5. No other states have an interest in hearing the case, and it is in the child’s best interest for Connecticut to hear the case.

Generally, New York has custody and visitation jurisdiction if one of the following conditions apply:

  1. New York is the home state of the child at the time the custody/visitation application is submitted, and the child has resided in New York State for the last six (6) months before the start of a custody/visitation action, or
  2. No other state has jurisdiction, or any interested states has declined jurisdiction; and
    1. The child and child’s parents, or the child and at least one parent, have a significant connection with New York State other than a physical presence; OR
    2. Substantial evidence exists in New York concerning the child’s care, protection, training, and personal relationships; OR
    3. All courts having jurisdiction have declined jurisdiction on the ground that New York State is the more appropriate forum to determine custody; OR
    4. No court of any other state would have jurisdiction under the provisions of the statute.

You can now see that when determining where to file your family law matter, often jurisdiction is not a matter of choice, but a matter of law.  While it is possible that your case may be filed in either court, understanding the jurisdictional requirements is crucial in eliminating unnecessary expenses and attorneys’ fees expended by moving a case to the appropriate jurisdiction.  

If you have any further questions concerning the appropriate jurisdiction to file your family law action or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

What You Need to Know About Divorce Automatic Court Orders in Connecticut

In Connecticut, upon filings for dissolution of marriage, dissolution of civil union, custody, and visitation, annulment, or legal separation, automatic court orders are put into place that essentially put a freeze on taking certain actions during the pendency of the case. These orders essentially act as restraining orders and are binding on the plaintiff at the time the complaint is signed, and on the defendant when served. Both parties must comply with these orders or risk facing contempt.

The intention behind these orders makes sense: they are designed to maintain the status quo. The period surrounding a divorce or separation can be extremely sensitive due to the enormity of uncertainty and associated stress, especially for households with children. Parents and children who once lived their lives completely intertwined will be forced to make changes in the coming months as the household is divided. Understandably, the stress that comes along with these changes often results in bringing the worst out of the parties. The automatic court orders aim to minimize actions by the parties that would inevitably cause further distress—or necessary legal action. 

Connecticut courts recognize that in cases involving children it is imperative to keep everything as close to normal as possible to minimize the disruption the divorce has on children. The parties are ordered not to move the children permanently from the state of Connecticut without the written consent of both parties. When moving from the marital home, you are ordered to notify the other party within 48 hours and to provide the other party with an address for mail to allow for communication. If the parties have decided to live separately during the pendency of the case, the parties must also aid the children in continuing usual contact with the other parent in person, by telephone, or in writing. Likewise, no parent may change existing medical insurance or allow for such policies to expire. Both parents must also participate in a parenting education program.  

It is worth noting, however, that such orders involving the children do not override any existing court orders that are in conflict. Conflicting orders may include existing criminal protective orders put in place at arraignment after a domestic violence arrest or civil protective orders.

In addition to their application to families with children, the automatic court orders also extend to finances, regardless of whether parties have children. In all cases, neither party may dispose of any property without written agreement by the other party or court order. You may not hide property, mortgage property, remove the other party from ownership in a joint asset, go into unreasonable debt, remove the other from existing medical, life, auto, homeowners, or renter’s insurance or allow such policies to expire, change the terms or beneficiaries of life insurance, or deny the use of the family home to the other person without a court order.  

While these orders are intended to be limiting, you can imagine the complexities that may arise. Is there a family business? Will the addition of a second household change the financial situation substantially? Does one party need to get a job considerably changing the childcare need? It may prove difficult to navigate everyday life with these orders in place and thus it is important to seek competent counsel to aid you in the process. 

If you have any further questions about automatic court orders in Connecticut or would like the representation of an experienced attorney to assist you, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.

Prenuptial Agreements in Connecticut

Prenuptial agreements, also known as antenuptial or premarital agreements, are recognized in Connecticut, though they are not required to fit within a rigidly defined structure to be enforceable.  In fact, it is likely by design that Connecticut has opted to allow the construction of such agreements to be governed by contract law so as not to limit their applicability.  Such agreements are not just for the rich and famous, they can be powerful asset protection tools for anyone.

What Should I Include in my Prenuptial Agreement?

Connecticut law defines a prenuptial agreement as an agreement between prospective spouses in contemplation of marriage.   In such an agreement, the parties may contract with respect to the rights and obligations of each party to property including the right to buy, sell, transfer, exchange, abandon, lease, consume, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property; the disposition of that property upon marital dissolution or other defined event; modification or elimination of alimony; the creation of a will or other asset protection tool enabling carrying out the provisions of the agreement; disposition of a life insurance policy and retirement plans; and any other matter that effects their personal rights and obligations. A full financial disclosure is required by both parties so as to ensure the parties are aware of all of the facts before entering into such an agreement.  In determine what provisions to incorporate, it is a good idea to consider all of these rights and obligations.

Can Alimony and Child Support Obligations be Included in a Premarital Agreement?

It is possible to agree on the terms of alimony in the event of the breakdown of a marriage under Connecticut law.  If a party asserts there has been a waiver of such a right, however, the party allegedly waiving such a right must have been aware that by signing the agreement they were relinquishing any claims to alimony, Chang v. Chang, 170 Conn. App. 822, 155.  The waiver of such a right must have been clear and unequivocal; an inference of waiver alone is not sufficient.

Of course, prenuptial agreements do not allow you to contract away certain public policy interests, including child support.  

How Will I Know if my Connecticut Prenuptial Agreement Will be Upheld?

When seeking to have a premarital agreement enforced, the enforcing party must be able to show that the agreement was either, 1) not entered into voluntarily, 2) was unconscionable when it was executed or when enforcement is sought, 3) before the agreement was executed, such party was not provided fair and reasonable disclosure of the amount, character and value of property, financial obligations and income of the other party; or 4) such a party was not afforded a reasonable opportunity to consult with independent counsel.  

It is always best with prenuptial agreements to be extraordinarily transparent with respect to everything that may affect the rights and obligations of each party ensuring that the agreement will be upheld.  

If you have any further questions about Prenuptial Agreements in Connecticut, contact our Managing Partner Joseph Maya directly via email at JMaya@Mayalaw.com or by telephone at (203) 221-3100 for a free consultation.