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  • 1.  Supreme Court petition when App Div arguments weren't on-point (Baures / relocation challenge)

    Posted 02-23-2016 04:19 PM
    Aside from a few emergent applications, I've only had two occasions to apply to the NJ Supreme Court. One was a summary issue and the other one (Pasqua, filed 12 years ago) didn't have this issue...

    Appellant, pro se, was unsuccessful in the Appellate Division. He has a potential issue that's "on the radar" as far as something the SCT may be interested in reviewing when the right case comes along. Client didn't really hit on the issue that the SCT may be interested in (and that I'd be thrilled to be involved in changing the law on). Question: Is the Supreme Court going to look at a broader issue if it wasn't the focus of the Appellate arguments - or is it limited to reviewing the App Div decision?

    Specifically - client lost a child relocation (Baures) hearing and his daughter was relocated to upstate NY. Trial court and App Div both correctly applied Baures. There's a lot of commentary that Baures needs to be re-examined. It rests on "social science" that even the author of the studies at issue has repudiated. In sum, the decision makes it too easy to relocate children out of State (there's an outstanding analysis by Ronald G. Lieberman, Jeralyn Lawrence, Sheryl Seiden, and Chuck Vuotto from the Symposium last year that goes into detail –     The Underpinnings Of Baures v. Lewis Crumble Under Scrutiny- www.dpdlaw.com/BauresMustGo.PDF ). We're out of step not only with justice but with the holding of essentially every other state to address the issue.

    Anyway, the problem is that the appellant, pro se, raised a lot of other dubious issues (whether the trial record supported the ultimate findings, that the judge should have recused himself because he lives a mile away from one of the attorneys, that his trial counsel committed malpractice, etc), but didn't raise the head-on challenge to Baures that may be successful.

    Does anyone know whether the Supreme Court will take a broader view (and disregard the losing arguments) if a good petition for cert is filed? I don't want to take this guy's money if it isn't "the" case that needs to go up on this.

    Any thoughts / insights welcome.

    Thanks,


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    - Dave

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
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    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222

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  • 2.  RE: Supreme Court petition when App Div arguments weren't on-point (Baures / relocation challenge)

    Posted 03-06-2016 05:39 PM
    Hi Dave:

    I've enjoyed following your various commentaries...almost always well reasoned and informed,  to a point. We part ways when you seem to predicate an argument/analysis on anything that suggests you accept the "science" or "discipline" of clinical psychology as applied to the child custody enterprise.  But we had bought into the contrary argument and "winning" for me is virtually impossible.  has anything of any value to contribute to the law. It's not just wrong; the stuff doesn't exist. I would be happy to debate this point any where with anyone.



    Christopher R. Barbrack, Esq.
    Counselor at Law
    Ph.D. Licensed Psychologist (NJ Lic. No. 1293)
    20 Nassau Street  Suite 100
    Princeton, New Jersey 08540
    Phone: 609-497-1111

    The information contained in this electronic message may contain confidential information that is attorney work-product or is subject to the attorney-client privilege and intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination,distribution or copying of this communication is strictly prohibited.If you are not the intended recipient, please do not read, copy,disclose or utilize this communication in any manner. If you are not the intended recipient, please reply to this e-mail, stating you received this e-mail in error, and then delete the e-mail and any attachments from your system. Your cooperation is appreciated.




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  • 3.  RE: Supreme Court petition when App Div arguments weren't on-point (Baures / relocation challenge)

    Posted 03-07-2016 11:56 AM
      |   view attached
    While I am not looking to throw gasoline on the  fight between Christopher  Barbrack  and David Perry Davis over Barback's view of the "science" or lack thereof involving  child custody evaluations in this state  and his willingness  to "debate" anyone on this topic, I happen to have been one of the authors of an article, co-written by  Madelyn Simring Milchman Ph.D and  Eileen A. Kohutis Ph.D., entitled Using Scientific and Clinical knowledge to Challenge Child Custody Experts: A Rebuttal to C.R. Barback Esq.'s Article, which specifically focuses on our "disagreement" with Barback's position.  A copy of the article is attached hereto and was prepared in response to Christopher R. Barbrack's article, "Using Cross-examination to Challenge Child Custody Experts,which article appeared in the February 2013 issue of the New Jersey Family Lawyer.
     
    Richard Diamond
    Diamond & Diamond P.A.
    225 Millburn Avenue, Suite 208
    Millburn NJ 07041
    973-379-9292

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  • 4.  RE: Supreme Court petition when App Div arguments weren't on-point (Baures / relocation challenge)

    Posted 03-07-2016 01:19 PM
    Thanks for reminding me why I almost never participate in these forums.  As far as I am concerned, there is and never  was a disagreement, spat, misunderstanding,  or highly nuanced conflict between David and me.  If you are interested in a written or oral public debate on points I tried to articulate here,  I'd be open to an invitation.  I'd  agree to your buttressing your effort by enlisting three  of your friends and  graduate school professor for suppport.  Your distortions and the early reference to throwing gasoline belong on Fox New. 

    Now is the time for someone to chime in with ""This isn't the place...."

    See ya.

    Christopher R. Barbrack, Esq.
    Counselor at Law
    Ph.D. Licensed Psychologist (NJ Lic. No. 1293)
    20 Nassau Street  Suite 100
    Princeton, New Jersey 08540
    Phone: 609-497-1111

    The information contained in this electronic message may contain confidential information that is attorney work-product or is subject to the attorney-client privilege and intended only for the use of the individual or entity named above. If the reader of this message is not the intended recipient, or the employee or agent responsible for delivering it to the intended recipient, you are hereby notified that any dissemination,distribution or copying of this communication is strictly prohibited.If you are not the intended recipient, please do not read, copy,disclose or utilize this communication in any manner. If you are not the intended recipient, please reply to this e-mail, stating you received this e-mail in error, and then delete the e-mail and any attachments from your system. Your cooperation is appreciated.




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  • 5.  RE: Supreme Court petition when App Div arguments weren't on-point (Baures / relocation challenge)

    Posted 03-07-2016 02:01 PM

    I'll chime in.  But only to thank everybody who posts on this list serve.  I find the vast majority of the posts valuable and informative, even (or especially?) when opinions differ.  I thought this particular Baures thread was really interesting and appreciate the references to relevant articles.  I very much hope this thread won't result in a chilling effect on anybody's participation on this list serve.

    Hope everybody can get outside today at some point to enjoy this great early March weather . . . I just spent an hour outside my office and it almost felt like Spring . . .

    Anne

    Anne Cralle, Esq.
    LAW OFFICE OF ANNE CRALLE
    Limited Liability Company
    276 Main St.
    Metuchen, NJ 08840
    (732) 829-5805


     





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  • 6.  RE: Supreme Court petition when App Div arguments weren't on-point (Baures / relocation challenge)

    Posted 03-07-2016 02:09 PM

    Is this a spat?

     

     

     

     

     




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  • 7.  RE: Supreme Court petition when App Div arguments weren't on-point (Baures / relocation challenge)

    Posted 03-07-2016 03:19 PM
    I didn't see any fire, or even a spat. I think I've only had one angry post on this list ever. If anyone thinks that arguing a point or heartily disageeing is the same as a "fight"  / spat between counsel, I think they're in the wrong profession. I've always abided by Shakespeare's take on advocating and arguing ("...And do as adversaries do in law, Strive mightily, but eat and drink as friends...")

    Chris is, I believe, a psychologist as well as an attorney, so I'd certainly defer to his knowledge on the issues and be interested in hearing his views.

    But, in any case, my post on Baures being reviewed by the SCT wasn't "predicated on an argument/analysis .... as to the "science" or "discipline" of clinical psychology as applied to the child custody enterprise" -- the point was that - along with many other criticisms (set out in the excellent articles by many attorneys, including Jeralyn Lawrence, Sheryl Seiden, and Chuck Vuotto: http://dpdlaw.com/bauresmustgo.pdf ) - the "science" underlying Baures (primarily by Dr. Judith Wallerstein) has been refuted / disavowed even by the authors of it and that the "science" holding that "generally, what's good for the custodial parent is good for the child" (rather than a best interests analysis) was discreditted (rather than an argument that the psychological issue itself wasn't legitimate). I've always assumed that psychology has a role to play in that analysis, but I wouldn't suggest a court abdicate its role to psychologists. As a result primarily of Wallerstein's "science" in Baures, the Supreme Court established a presumption that if a parent shows a good-faith reason to move and that it wouldn't be inimical to a child's best interests, the relocation should generally be permitted -- a very, very low threshold.

    If the relocation issue can't be decisively determined by psychology (i.e., whether it serves or harms a child's best interests to have a parent relocate), then the presumption in favor of relocation on the low Baures standard disappears and we're back to Cooper / Holder and a case-by-case analysis of the best interests of a child in any given circumstances (or, hopefully, statutory criteria as in the bill the FLS has introduced and supported).

    Anyway, I didn't see any "fight" with Chris over it, and the point of my post was whether a particular case I was looking into would be a good vehicle to try to bring the issue for Supreme Court review in light of its facts and procedural history of that case (issue not really raised in the App Div). The response (primarily off-list) was an overwhelming "no" - that wasn't the case to bring up, so the search goes on.


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    - Dave

    David Perry Davis, Esq.
    ----------------------------------------------------
       www.FamilyLawNJ.pro
    ----------------------------------------------------
    112 West Franklin Avenue
    Pennington, NJ 08534
    Voice: 609-737-2222
    Fax:    609-737-3222




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