DC CHILD CUSTODY LITIGATION: WHAT IS THE BEST INTEREST CRITERIA

This blog highlights specifically the legal definition of the “best interest of the child” as relates to DC child custody litigation: All cases involving and relating to the children in family matters; termination of parental rights/adoption, guardianship and child custody and neglect – all invariably use the “best interest of the child” criteria as a paramount factor in the reaching the final order and the legal analysis substantiating that order. The court looks at different but similar legal elements in each family matter to define the “best interest of the child” criteria. For the DC child custody litigation in awarding physical and legal custody to one parent or jointly or shared in some fashion – – the court defines the relevant factors as such: 1)The child’s bond with each parent and the child’s desire and preference when applicable as to where he/she wants to reside. In the District the age of consent is generally 14, and thus, at that age or above the court will require and factor in heavily the child’s preference. 2) Each parent’s position/desire will be balanced as to both physical and legal custody arrangement.   Parents willingness to work with each other, conflict resolution, outcome of mediation
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Categories: Family Law.

RECENT COURT OF APPEALS DECISION: DISCLOSURE OF JENCKS/DISCOVERY

In Hernandez v. U.S. decided on January 14, 2016, the DC Court of Appeals affirmed the assault charge but remanded for further review by the trial court on the issue of non-disclosure of the Jencks material and whether a new trial would be warranted. Factually, Hernandez was charged with domestic violence assault against his girlfriend. Although she had technically denied the assault, due to some language barriers and other significant independent evidence — the trial court’s findings were affirmed on that issue alone. Specifically, an independent witness had seen the defendant choke Ms. Argueta-Avila/the complainant and then saw her fall to the ground. The Officer at the scene described the complainant frantic, shaken and crying with scratches on her chin and arms. Moreover, the record contained testimony from the complainant that every time he drinks he does this, meaning puts his hands on her. The trial court credited the complainant’s testimony that the defendant grabbed her shirt and pushed her. The trial court recognized that when she had told the police that Mr. Hernandez did not assault her — she meant that he had not hit her, but that legally there was sufficient evidence of assault. However, the Court of Appeals
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Categories: Uncategorized.

DC ADOPTION LAWS: LEGAL PARAMETERS

DC adoptions can be categorized as Child and Family Services (“CFSA”) involved or private adoptions. The legal paradigm remains the same. However CFSA involvement could and generally does complicate the process as there are additional requirements to make the child eligible for the federal subsidy. Such requirements are adoption licensing, home study/visits, Interstate Compact (“ICPC”) when applicable, adoption final report, adoption subsidy agreement, federal and state police as well as Child Protection Registry (“CPS” ) clearances just to name a few. Once the CFSA procedural requirements are met, there still remains the legal threshold to completing the adoption and entering of the final order and decree. This blog however will focus on these legal requirements and the legal elements that must be established by clear and convincing evidence. After filing an adoption petition content of which is strictly confidential, the court will issue a show cause order to the biological parents with a court date for service to be completed. At the show cause hearing, assuming the parents are properly served with the show cause order, the court may move forward with the hearing. The parents may either enter a written consent, or contest the adoption. If contested, the court
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Categories: Family Law.

RECENT COURT OF APPEALS DECISION: ATTEMPTED THREATS REVERSAL

In Milton v. U.S., decided by the DC Court of Appeals on December 24, 2015, the Court reversed Milton’s conviction for attempted threats against the arresting police officer. Officers had responded to an unlawful entry call on July 5, 2015, and Milton having been identified as one of the culprits was placed under arrest, but while on the curbside and cuffed, uttered to one of the arresting officers that “take that gun and badge off and I’ll fuck you up,” and moreover, that “too bad it’s not like the old days where fucking up an officer is a misdemeanor.” These words were uttered calmly and in a conversational tone but were the basis for the attempted threats conviction at the trial level. The Court of Appeals enumerated the elements of the offense, that 1) the defendant uttered words to another person; 2) those words were of such nature as to convey fear of serious bodily harm or injury to the ordinary hearer… The Court in reversing the conviction carefully construed the circumstances and the nature of the words uttered by the defendant and whether such in fact did or would have incited a reasonable fear of physical bodily harm on
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Categories: Criminal Defense.

MIRANDA WARNING/CUSTODIAL INTERROGATION – RECENT COURT OF APPEALS DECISION

In Morton v. U.S., the DC Court of Appeals recently reversed defendant’s conviction for one count of felony and one count of misdemeanor Receiving Stolen Property (RSP), due to Miranda violations denial of motion to suppress at the trial level. Officers had approached three individuals engaged in suspicious activity with their hands, appeared to be a drug transaction, Morton, one of three, began running as officers questioned the group – chase ensued and Morton dropped a wallet during chase which was later recovered. Morton was apprehended, chuffed and questioned about the wallet, why he had ran from the officers, questioned about his identity and his correct name – all of which gathered enough information to discover Morton’s true name, and to arrest him on a open warrant and later connect him by the wallet recovered to a burglary and slew of other related charges. A motion to suppress statements made by Morton to the Officers was denied at the trial, on appeal the Court of Appeal in short determined that because Mr. Morton was in Miranda custody during the police questioning, he was entitled to Fifth Amendment protections before the officers questioned him, and therefore, the trial court erred in
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Categories: Criminal Defense.

COURT OF APPEALS DECISION: REVERSING DRUG POSSESSION CONVICTION

In OLUSHOLA AKINMBONI V. UNITED STATES, decided on November 19, 2015, the Court of Appeals reversed the defendant’s conviction for possession of marijuana, BZP, and drug paraphernalia holding that the cellblock cavity search of the defendant was constitutionally impermissible. Here the defendant was pulled over during a valid traffic stop, and marijuana was observed in plain view and the arrest made. The next day at the courthouse cellblock, the defendant was searched again and during that search the US Marshall had observed plastic bags partially protruding from the defendant’s cavity. Defendant was ordered to remove the items (several bags) and thus additional possession charges were lodged against the defendant. The Court of Appeals in holding that the cavity search at the cellblock unreasonable, highlighted the following: The Fourth Amendment at its core prohibits unreasonable searches and seizures and in the absence of an exception, warrantless searches or seizures are inherently unreasonable and the evidence gathered during such searches are invariably suppressed and are inadmissible. Moreover, if a search or seizure is conducted without a valid warrant, the government always bears the burden that the search and the seizure of the evidence was reasonable. There is also a balancing act in
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Categories: Criminal Defense.

RECENT COURT OF APPEALS DECISION: REVERSING CONVICTION – SUPPRESSING CONFESSION

In Little v. U.S., decided on November 12, 2015, the issue was the constitutionality of the confession, which lead to conviction at trial with little or no collaborating independent evidence. Little was picked up on an abscondence warrant and suspected of being involved in an attempted car robbery and was ushered to the interrogating room. Mr. Little’s cell phone was found inside the car, and although he vehemently denied involvement initially – eventually after several hours of interrogation confessed to the crime. The issue on appeal was the voluntariness of the confession in light of the highly unconventional and aggressive tactics the detectives used to bring about the confession. Detectives falsely claimed or suggested that his fingerprints were found at the scene. That he was identified by the eyewitnesses and also through photo array lineup. He may be inculpated in other robberies. He faced enhanced penalties for robbing a senior citizen. But the two tactics/statements by the detectives that swayed the decision of the Court, that the detectives had crossed the line, had to do with Little’s latent request to involve his possible lawyer with a deal negotiations first suggested by the detectives, and the repeated insinuations that Mr. Little
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Categories: Criminal Defense.

RECENT COURT OF APPEALS DECISION: MALICIOUS DESTRUCTION OF PROPERTY

The Court of Appeals in LAWRENCE N. HARRIS v. UNITED STATES, decided on October 29, 2015, reversed the appellant’s conviction for malicious destruction of property. The appellant had shared a home with his mother and sister and while locked out of the property by her mother, the complaining witness, attempted to gain entrance by kicking the front door causing damage to the door and ultimately getting arrested. Appellant was convicted under D.C. Code § 22-303, which states “[w]hoever maliciously injures or breaks or destroys, or attempts to injure or break or destroy, by fire or otherwise, any public or private property, whether real or personal, not his or her own,” shall be guilty of malicious destruction of property. The trial court however concluded that there was sufficient evidence to convict because the defendant had either intended to damage the door to gain entrance or acted with knowledge/awareness that his repeated kicking of the door with great force created a substantial risk of harm to it. Conviction for malicious destructive of property requires the requisite criminal intent and also malice aforethought. The intent is to insure or destroy property for a bad or evil purpose. The malice is defined as the
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Categories: Criminal Defense.

Justice Department v. Apple Computer: IPHONE SEARCH AND SEIZURE

In an ongoing criminal investigation, the Justice Department in the Eastern District of NY, on October 9, 2015, requested an order pursuant to all Writs Act, 28 U.S.C. § 1651, to compel Apple to “disabl[e] the security of an Apple device that the government has lawfully seized pursuant to a warrant.” This case has brought to the forefront once again the balancing act between the need from the law enforcement to decode encrypted devices (the going dark problem), prevailing privacy issues, and the lack of Congressional authority to compel third party private manufacturers to cooperate with the government or to design devices not necessarily impermeable. Here in support of their request to the District Court, the government cited and argued the 1977 US Supreme Court (“the New York Telephone”) whereby the telephone company was compelled to install a pen register in their our equipment to cooperate with an ongoing criminal investigation of their facility. The District Court distinguished the facts and circumstances of that case from present facts in that: the order here is seeking information from a device that Apple does not own or have control over whereas in the case cited the government sought information from the company’s
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Categories: Technology law.

SELF DEFENSE THROUGH THE COMPLAINING WITNESS — RECENT COURT OF APPEALS DECISION

The Court of Appeals in Travers v. U.S., issued on October 8, 2015, revered multiple felony assaultive convictions because the defendant was restricted at trial to fully either testify or to elicit testimony to bolster his self-defense theory. Travers was convicted of assaulting his sister/Bethel during a domestic dispute where the complaining witness/sister had directed her boyfriend/Scott to “get him”, Travers that is. Travers alleged that in self-defense he had used a golf club to swing at the boyfriend and had accidentally hit his sister, the complaining witness. Travers argued that the court erred by precluding him from presenting the evidence of Bethel’s prior acts instigating violence or directing violence at family members through other individuals. That these prior acts had contributed to his objective belief that self-defense was necessary or that he was in peril. He was also not allowed to testify as to his knowledge and circumstances surrounding these prior acts of violence through third party. The Court highlighted that “[a] person’s right of self-defense, and especially the degree of force the victim is permitted to use to prevent bodily harm, is premised substantially on the victim’s own reasonable perceptions of what is happening.” That if the Travers
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Categories: Criminal Defense.