Challenges.
Edited
by George E. Reed, Jr.
A. Good father, violent husband. Father was affectionate, involved in school and extracurriculars, and a model parent in every way except for repeated violence toward mother. Andrea, aged 16, emphatically wanted to live with father.
B. Splitting older children. Bob was 16 and wanted to live with father, finding mother smothering. Bill was 14 and also was uncomfortable with mother, but would not leave because he worried mother would have a breakdown if both sons left her. Mother babied sons, tucking them in at night.
C. Young child, parent influence. Carol, age 6, did not want to visit with father, but was not afraid of him. Some reasons she gave LG were that Daddy does not pay child support, and once they were in the car with Daddy and he ran the car off the road and tried to kill them all (Carol has a younger sister who is also LG's client). Parties disagree on circumstances of car incident but agree that Carol was age 1 at the time.
D. Relocation. Donald was happy living with mother but loved
spending time with father. Mother wanted
to move to
E. Younger child sides with older one. At the beginning of the case, Eleanor is 7 and Eddie is 3. Father gets temporary custody from a town justice (by a stayaway temporary order of protection vs. the mother), and continues to have custody to end of case years later. Eleanor develops an increasing aversion to seeing mother, who does not pay child support; first she wants just short visits, then eventually says she wants none at all. LG goes to see a visit and sees Eleanor jump into her mother's arms. Eddie does not seem to have strong feelings, but wants to go with the program, namely Eleanor's position.
F. 11-year-old's reasons for living with mother not impressive to court. Frank, age 11, is intelligent but has Tourette Syndrome, OCD and ADHD. Frank strongly wants to live with his mother. He is very close to her and dislikes the discipline in his father's house. He tells LG that his mother lets him eat all the snacks and play Wii and other games as much as he wants, but he still gets his homework done. He does not, however, get much exercise and is overweight.
G. Questioned on BIOC vs. what child's want. Previously, grandmother got custody of Gina with LG's support because mother was less responsible. Affirmed. Now Gina is 12 and wants to live with mother, who is more mature and somewhat more stable than earlier and also is easier for Gina to talk to about teenage girl issues. Family Court grants the change of custody with LG's support, and grandmother appeals. At argument, a judge comments on the change of position from the previous appeal, and asks LG: Are you taking this position because it is in the best interests of the child, or because that's what the child wants?
H. Reluctant small child. Henrietta, age 5, says she does not want to have visits with father. She has nothing strong to tell LG. She cannot come out with anything she likes to do with father. Information from parties does not indicate that father was greatly involved but also does not indicate any wrongful behavior on his part.
I. Client wants to
be with boyfriend. Inez, age 15,
lives with her mother in
J. Parents want JD case pled out. Jack, age 15, is arrested in a group of 4 shoplifters, the merchandise in total is felony level, but his involvement is not clear and LG sees a substantial possibility of winning the case. Jack wants to defend. Jack's parents tell LG to take a plea becasue they do not have time to keep coming back to court. LG tells them politely they cannot direct LG how to handle the case. Parents tell Jack in front of LG, you tell your LG to take a plea.
K. PINS respondent does not want to have mother charged with neglect. Katarina, age 14, is charged as a PINS by her mother, and placed in a foster care facility. Katarina has behavior problems, but mother had first four children TPR'd, and fifth child is in long term foster care. Katarina wants to be returned to her mother as soon as possible, and is in denial as to the seriousness of her mother's problems and the likelihood of angry verbal flare-ups between the two, which have even occurred in the court hallways. She does not want to be a PINS but does not want to have her mother testify and does not want to try to get a neglect case filed against her mother.
L. Suspicious injuries to children. Larry and Lenox are age 2½ and 1½. When Larry was 1½, he was burned by an iron while visiting his father. Then a year later Lenox, now age 1½, gets burned by an iron while visiting his father. Supervised visitation is ordered, and a neglect petition is filed, but the cases drag. LG serves interrogatories (under a custody and visitation docket number, still pending) which the father ignores despite follow-up letters. DSS keeps on forgetting to produce the file to LG. Then DSS attorney announces that DSS and the respondent father have agreed on a consent finding of neglect without admitting or denying the allegations of the petition. Judge wants LG to agree to the consent finding.
M. Changing mind. Maria, just turned 17, is in a group home, and is now sitting in court with LG at a permanency hearing. The attorneys know that placement will be extended. Maria originally tells LG she wants to go home, and he announces that he will seek that relief. Then ten minutes later he announces that Maria has changed her mind and wants to go along with the placement. A caseworker testifies and has still not finished, and now Maria tells LG she has changed her mind again and won't go along with placement.
N. Return to parent bound to fail. Nicholas, age 15, has been in a series of placements, legally as a neglected child, but in fact has a history of assaulting staff and damaging property which has never led to a juvenile delinquency charge. He is taken to a state children's psychiatric center and kept there for a year because DSS does not know where to place him. The psych hospital wants him out of there, and the psychiatrist is willing to testify at a permanency hearing that he does not need hospitalization, and will discharge him. Nicholas absolutely wants to go home, and his mother will (with trepidation) go along, but there is no question he will act out at home and she will be unable to control his behavior.
O. Mentally ill mother. Oliver (age 13) and Ophelia (age 10) were removed from their mother because their home was filthy and she was not getting Oliver needed psychiatric care. Mother was diagnosed as bipolar with various complications and was not really meeting her own needs, let alone her children's, but the bonds were very strong and the children spoke with their mother a long time every day once in foster care. The mother's attorney did not demand an FCA §1028 hearing (for return of the children), but the children can't stand being in foster care and want to go home.
P. Runaway from foster care. Patrick, age 16½, on a voluntary placement, has not done well in his seven years in foster care and is not happy there. After a permanency hearing at which he was chatting with his mother, he disappears from the courthouse and is never found, but is suspected to be with his mother out of state. The LG never hears from him after he absconded from court. Now, when Patrick is age 17½, DSS petitions for a release from responsibility.
Q. Parent's attorney connected with family. Mother of Quiana (age 11) is obsessed with perceived worthlessness of father, who has moved out of state and is actually a responsible person both in his work and his relationship with Quiana. Both parents earn enough not to qualify for assignment of counsel but cannot afford an attorney. Father is proceeding pro se. Mother's boyfriend's sister "Attornietta" is representing her for free. Attornietta is close to the family and is deeply personally invested in the case, constantly telling the court and LG about what supposedly awful things the father did now. She cannot discuss the case calmly. As for the mother, other than her determination that Quiana should see her father as little as possible, she is a good mother.
R. The tolerant household. Ruth, age 15, had to go into foster care after years of abusive treatment by her MICA mother which for some reason went undetected. After several months of placement in a diagnostic facility her adult female cousin came forward to ask for custody, looking to an immediate placement under the neglect case and proceeding to get qualified as a kinship foster parent. Adult cousin was expected to be quite lax in supervising Ruth, and that is what most appealed to Ruth about living with her.
S. Recanting sexual abuse. Sylvia, age 12, was removed on a report that mother's boyfriend was had tried to have intercourse with her but had stopped before insertion when she resisted. She initially confirmed the conduct to the CPS investigator. In the few days before LG was appointed, however, the boyfriend's retained attorney got to Sylvia and Sylvia recanted, believing that she would not get to go home unless she recanted. Sylvia told LG there was no sexual contact, but spoke with an alarming familiarity with sexual matters and casual use of various vulgar expressions. In her denials to the LG she accidentally confirmed the boyfriend's misconduct, but corrected herself quickly. The County came to the preliminary proceeding looking to withdraw the abuse petition due to the recanting.
Fact Pattern “T”
Submitted to the Committee
Abby and
Jack Kerouac reside in
For nearly a year, Jack complied with the requirements of the supervised visitation program and family counseling. Abby sent the children for visits and attended the counseling, but did not fully invest in the process. The children continued to verbally abuse their father during visits and at times physically abused him. The supervised visitation agency sent a report to the Court advising that Jack had behaved appropriately but Abby had continued to alienate the children from their father. The agency counselors reported that this was the worst case of alienation they had ever seen and that, instead of making progress, the children had become even more disrespectful toward their father.
Jack filed an Order to Show Cause seeking an immediate change of custody to him due to the total lack of progress in counseling and Abby’s continued alienation of the children.
The Court scheduled a conference to discuss the case and set a trial date. The Law Guardian requested an updated forensic evaluation and, in light of that, the Court scheduled a trial three months later. Jack and his attorney are very concerned about this delay in light of the research findings on alienation and the ineffectiveness of therapy in attempting to restore Jack’s relationship with his children to date.
Questions for Consideration:
-Should the Law Guardian have requested an updated forensic evaluation or an immediate trial date?
-What information is necessary for the Law Guardian to advocate effectively in this case?
-How soon should the Law Guardian
request a
-Should the Law Guardian advocate for a change in custody? If so, what information does he or she need in order to make this argument?
-How can a Law Guardian find an appropriate forensic evaluator? Are there any experts in parental alienation and if so, how can they be located?
Fact Pattern “U”
(Submitted to the Committee))
Martha sues George for custody of their four year old daughter, Betsy, and 13 year old son, Nick, and alleges in her petition that George has sexually abused Betsy. The Family Court appoints June Justice, of Justice for Children, an organization under contract with the Appellate Division, as the attorney for the children (formerly known as “law guardian”).
a. Assume that in response to George’s motion to dismiss the complaint as insufficient on its face, both Martha’s attorney and the Court question June Justice about her investigation of the case and statements that the children may have made to her. George’s attorney argues on appeal that such questioning was completely improper, that June Justice should not have been permitted to make any statements on the record and that she should have been removed as the attorney for bias. What should the Court rule?
b. Assume that both children adamantly deny that any sexual abuse took place and both ask to live with their father. Should June Justice argue that position on behalf of both children?
c. Assume that George and Martha’s attorneys agree to a settlement to which June Justice objects. Should the Court approve the settlement?
d. Assume that June Justice argues for both children to be placed in George’s custody. Martha’s attorney moves for June Justice to be disqualified on the ground that she is overworked, has neither interviewed the children nor performed any investigation on their case and reportedly represents over 200 children in the Family Court in violation of the new attorney workload rule. What should the Court rule?
Fact Pattern “V”
(Submitted to the Committee)
Case Study - Conflicts - Neglect
You have been informed by the Court that the former attorney for the child has been relieved due to a conflict and is conflicting off all three children in a neglect case. No reason for the conflict is given.
The subject children are: Rainbow – female – age 6 months
Monique – female – age 8
Steven – male – age 10; Steven suffers from ADHD
All three children have already been remanded when you are assigned and are residing with their maternal grandmother.
The allegations in the petition are against both the mother and the father of the infant, Rainbow, who is the stepfather of the target children, Monique and Stephen. Both parents are alleged to regularly use marijuana, and are not compliant with any drug treatment. In addition, ACS has alleged excessive corporal punishment by the stepfather (of Steven and Monique) on Steven and Monique. The Stepfather allegedly hit Steven with a plastic bat and hit Monique with his hand. ACS further alleges that they have seen bruises on Steven. And, it is alleged that the mother knew or should have known that the stepfather inflicted excessive corporal punishment, and she did nothing to stop it.
The ACS attorney has told you that Steven wants to return home; she does not know what Monique wants. ACS is now offering to parole all 3 children to the mother on condition that she comply with drug treatment and that she exclude the stepfather from her home.
Question: Do you accept assignment for all three children and move on to interviewing them all? If not, which child(ren) do you conflict off?
Assume that you have been assigned to all three children. You interview Steven first and during his interview, Steven confirms that he has been hit with the plastic bat by his stepfather, on more than one occasion, causing bruises, and he thinks that Monique is regularly hit by the stepfather as well.
Monique confirms excessive corporal punishment by stepfather and indicates that he also hits her mother and that she (Monique) is afraid of him. She wants to go home to her mother if the SF is excluded, although she also states that she loves her grandmother and likes it at her grandmother’s home. She is not too sure about when the SF has been living with the family and when not. Rainbow, the infant, appears to have no special needs. She seems to be well taken care of by the grandmother.
1. What
positions should you take on behalf of each child regarding parole?
2. Is
there any conflict among those positions?
3. If
there is a conflict, which child(ren)
should you stay on, if any?
Fact Pattern “W”
(Submitted to the Committee)
FACTS
Brad and Angie were married for seventeen years when they got divorced. The judgment of divorce provides that the parties share joint custody of their two children,
Mary (age 15) and Lou (age 9). The children reside primarily with Mom. The parents have recently filed cross-petitions for modification, each seeking sole custody of the children. Angie claims that Brad has a violent temper and anger management problems which are now directed at the children; that Brad is brain-washing Lou against her and that he is constantly making disparaging remarks about her in front of the children. Brad claims that Angie is allowing Mary to have sex with her boyfriend, Ted, and has assisted her in obtaining birth control over his vehement objection.
1. ASSIGNMENT
Do you get an order of assignment appointing you as the attorney to represent the children?
Are there any special provisions are in that order?
— Release of info/records
— Direct the assigned attorney to see the children
— Order the parties to cooperate with the attorney for the children
Does the court routinely appoint attorneys to represent children in custody cases?
If there are multiple children, does the court appoint more than one attorney?
Does age play a role in the court's determination whether or not to appoint an attorney?
If they are ages 2 and 4, does an attorney still get appointed to represent them?
What do you do if the parent refuses to bring the children to meet with you?
2. CONFLICT OF INTEREST
Assume that you have now met with your clients, the children. You have come to learn that the children each want to live with a different parent but they request that you not reveal that stated position.
Do you feel that there is or may be a conflict of interest?
Do you request to be relieved?
What would constitute a conflict? What issues would not be a conflict / In what circumstances could you continue to represent both children with different positions?
If you move to be relieved, does the court require you to state the basis of the conflict in deciding the motion? Is opposing counsel allowed to question you?
How much information can you reveal? How do you protect your client's confidentiality?
3. REPORTS
Are you asked for a "law guardian report" at this or any point in the proceedings?
If you are asked by the court for a report, what do you do?
4. DISCOVERY / ADVOCATE WITNESS
As part routine investigation, you visit the children where they currently reside with Mom. Additionally, you consult with the children several other times, sometimes at school, sometimes at your office, sometimes in a neutral setting like McDonald's or the park, and sometimes on the phone. During the course of the litigation, the father's attorney seeks rather broad discovery including Mary's diary, an EBT of both the children concerning parenting methods of their mother, and that the you turn over all notes concerning the home visit that was conducted. The father is claiming that you observed something during the home visit that impacts the case; perhaps relating to the condition of the house or statements made by the mother or children.
What do you do? Make a motion under article 31 of the CPLR for a protective order? Anything else?
5. STIPULATION
Suppose that the parties come to an agreement and are prepared to put a stipulation on the record to resolve the case. However, you object to the proposed stipulation, for whatever reason. Assume that Brad's attorney wants to know the basis for the objection and asks the court to question you about what investigation was done and any statements the children may have made that form the basis of the position taken.
How does the court react to your objection to the stipulation? Does the court take the stip or go to a hearing? Does the court ask you for the basis of the objection and/or hold a hearing to allow proof on the issue?
How much colloquy does the court require you to engage in regarding the child's position?
Are you ever asked to be put on the stand and give testimony?
What do you do about that?
6.
Does the court in your jurisdiction hold an in camera interview of the children at this point?
When
would the
Is it routine in every case?
What
is your court's procedure for holding
Are the children interviewed together or separately? Do you request one way or the other?
Are attorneys allowed to submit questions? Do you get to see those questions?
Does the court allow you as the attorney for the children to be present? to participate?
What do you do if a party requests a copy of the transcript of the in camera?
MORE FACTS
Assume that the parties agreement falls apart and that during the course of the proceedings, the father moves out and you make an interim order allowing parenting time with dad. Because of allegations by the mother concerning domestic violence, she has requested that the transfer of the children be supervised and asks that the attorney for the children be present during those times to make sure that the children are not subject to his harassment of her or them.
Are you ever asked to supervise the visitation transfers, either by the court or by the parties? What do you do?
STILL MORE FACTS
During one of the visits, Mary is injured as a result of a physical altercation that occurred when Brad tried to prevent her from leaving the house in what he called an "inappropriate" outfit for a date with her boyfriend, Ted. Brad sought to discipline Mary by sending her to her room and when she refused to go, they got into a big fight that turned into a physical struggle causing Mary to fall down the stairs, hit her head on the radiator and break her leg. Lou called 911 while all this was going on and when the police arrived they found Mary unconscious and bleeding and Lou hysterical and crying that it was all Mary's fault. Mary told the doctors at the hospital that her father was drunk and belligerent and chased her up the stairs, hitting her and pulling her hair. The doctor's filed a hotline report and CPS commenced a 1034 investigation, ultimately indicating the report against Brad.
7. SUBSTITUTION OF JUDGMENT
Notwithstanding this, Lou is adamant that the incident was all Mary's fault and that he absolutely wants to live with his dad, more than ever. He tells you that Mary is lying just to get her own way and that he is afraid that dad will be all alone and that he needs him to live there with him. You are convinced from what has occurred and as supported by a psychological evaluation that there is parental estrangement and coercion going on and, obviously, domestic violence; and that despite Lou's insistence about living with his father, he is at substantial risk of emotional and maybe even physical harm.
Assume that your previous request to be relieved for a conflict was denied. Do you renew the motion at this juncture?
Do you have to get out all together or can you continue to represent one child?
Do you continue to argue for your client's stated preference to live with his dad?
8. MOTION TO DISQUALIFY
Assume that the conflict issue is resolved and you are representing Mary. Up until now you have taken no stated position but after the "incident" outlined above, you argue for Mary to live with her mother, per your client's request. Brad is outraged that the attorney is arguing for Mary to be in such an "unsafe" environment and his attorney makes a motion to remove you as Mary's attorney on the grounds that you are biased against Brad and not acting in Mary's best interests. He alleges that the attorney has not sufficiently or recently met with the child and has no current basis of knowing what her position is much less qualified to argue what is in her best interests. Unbeknownst to Brad, you have actually met with Mary many times and she has expressed her wishes but has all along requested that those meetings and preferences be kept confidential.
How do you oppose this motion to disqualify/remove?
Last updated January 19, 2009
Links to other sites, or links to this
site from any other sites, do not imply any endorsement of, or relationship
with, such other sites.