In the Matter of James MM., Respondent, v. June OO., Appellant.

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

 

294 A.D.2d 630; 740 N.Y.S.2d 730 (3d Dep’t 2002)

 

 [*630]   [**731]  Mercure, J.P.

 

 [*631]  Respondent (hereinafter the mother) and petitioner James MM. (hereinafter the father) were divorced in 1996. They were awarded joint legal custody of their minor children, James [***2]  NN. (born in 1988) and Betsy NN. (born in 1989), with physical custody to the mother. In December 1999, the father filed a petition (proceeding No. 1) alleging the mother's violation of a court order concerning visitation; he subsequently amended the petition to allege the mother's further violation of an order by allowing her paramour to reside with her and the children, thereby exposing the children to domestic violence committed by the paramour.

 

During the course of that proceeding, the children's Law Guardian became concerned about ongoing domestic violence in the mother's home. In March 2000, the Law Guardian filed a child neglect petition (proceeding No. 2) against the mother pursuant to Family Court Act § 1032, and the father filed a second amended petition, this time seeking sole custody of the children. The mother thereafter petitioned for sole custody of the children and, in May 2000, filed a violation petition against the father, alleging that he violated a court order by allowing their son to have contact with the mother's former paramour.

 

Following a fact-finding hearing at which Family Court heard testimony from the father and the mother,  [***3]  the children's therapist, the children's teachers, and a friend of the mother, the court found that the mother had neglected the children. It subsequently held a dispositional hearing, during which the Law Guardian noted that the children preferred to stay with their mother but, nonetheless, recommended that the father be awarded sole custody of the children. In December 2000, the court awarded the father sole custody of the children, awarded the mother regular visitation with the children, and dismissed the pending violation petitions. In February 2001, the court rendered an order of fact finding and disposition adjudicating the children to have been neglected by the mother and placing the mother under the supervision of the Columbia County Department of Social Services for one year. The mother appeals both orders.

 

We affirm. Initially, we reject the contention that the evidence adduced at the fact-finding hearing failed to support Family Court's findings that the mother neglected the children by exposing them to domestic violence and by denigrating the father in the children's presence.  [***4]  Pursuant [**732]  to Family Court Act § 1012 (f) (i) (B), a child will be deemed to be neglected if the child's "physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a  [*632]  result of the failure of his [or her] parent or other person legally responsible for his [or her] care to exercise a minimum degree of care" by failing to, among other things, provide proper supervision or guardianship necessary to ensure that the child is not harmed or at substantial risk of being harmed (see, Matter of Larenzo SS., 289 AD2d 880, 881; Matter of Ember R., 285 AD2d 757, 758, lv denied 97 NY2d 604).

 

It is well settled that 2a child's exposure to domestic violence in the home may form the basis for a finding of neglect (see, Matter of Larenzo SS., supra at 882; Matter of Kathleen GG. v Kenneth II., 254 AD2d 538, 540). Here, the mother acknowledged that she had been the victim of physical abuse by her former paramour on several occasions.  [***5]  Significantly, she also admitted that the children were aware of the domestic violence, that they had reason to be afraid of the paramour and that she had jeopardized the children's welfare by allowing her paramour to repeatedly return to her home. Family Court specifically credited the testimony of the children's therapist, who indicated that the children had reported other instances of abuse, and the record reflects that the mother did not take action to remove her former paramour from the children's lives until December 1999. The evidence also supported Family Court's further finding that the mother continued to lack awareness of the impact of the domestic violence on her children.

 

In Matter of Catherine KK. (280 AD2d 732), this Court found that a child was neglected due, in part, to the father's use of "profanity and derogatory language when speaking to the mother during visitation exchanges" (id. at 735). In this case, Family Court specifically credited the therapist's testimony that she had witnessed the mother's denigration of the father in the children's presence, which continued despite the therapist's instructions to the contrary. We [***6]  therefore conclude that Family Court did not err in its finding that the mother neglected the children by denigrating their father in their presence.

 

The mother's additional contentions do not warrant extended discussion. Based on Family Court's finding of neglect against the mother and its additional findings that there was a danger of further neglect because of the mother's failure to appreciate "the extent of emotional harm" that the children suffered due to her conduct and that the mother is unable to distinguish between her own interests and those of the children, all of which were supported by the evidence, there was a sufficient basis for the award of sole custody to the father (see, Matter of Kathleen  [*633]  GG. v Kenneth II., supra at 540). Finally, we are not persuaded that the Law Guardian breached his fiduciary duty to the children by prosecuting the instant neglect petition or by advocating a position contrary to the children's wishes. It is well settled that 3a "Law Guardian has [a] statutorily directed responsibility to represent [a] child's wishes [***7]  as well as to advocate the child's best interest" (Matter of Carballeira v Shumway, 273 AD2d 753, 755, lv denied 95 NY2d 764; see, Family Ct Act § 241), and, in cases where there is a conflict between the two, the Law Guardian may advocate for the disposition that, in his or her judgment, promotes the child's best interest (see, Matter of Carballeira  [**733]  v Shumway, supra at 755-756 [Law Guardian did not act improperly in making recommendations contrary to the wishes of an 11-year-old child who suffered from several neurological disorders and could easily be manipulated]; Matter of Dewey S., 175 AD2d 920, 921). Contrary to the mother's contention, the distinction between the facts underlying Matter of Carballeira v Shumway (supra) and the present case by no means requires dissimilar results.

 

The mother's additional contentions, including her claim of bias on the part of Family Court, have been considered and found to be unavailing.

 

Crew III, Peters, Spain and Lahtinen, JJ., concur.

 

Ordered that the orders are affirmed, without costs.

                   


In the Matter of Catherine Carballeira, Appellant, v. Loren Shumway, Respondent.

 

86313

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

 

273 A.D.2d 753; 710 N.Y.S.2d 149 (3d Dep’t 2000)  [*753]   [**151] 

 

Rose, J.

 

The parties to this proceeding were married in 1986 and are the parents of one child, a son, born in 1987. After marital difficulties arose, the parties separated in 1990 and, following a lengthy and vigorously contested trial, were divorced in 1995.  [*754]  The judgment of divorce granted the parties joint custody of their son with equally shared physical custody. Thereafter respondent remarried and the parties' animosity steadily increased until petitioner commenced this [***2]  proceeding in March 1997 seeking sole custody of the child. After appointing a Law Guardian and conducting pretrial proceedings, Family Court conducted an evidentiary hearing spanning 10 days over the period from October 1997 to June 1998. During the course of the hearing, respondent also requested an award of sole custody. In a well-reasoned decision, Family Court determined that continuation of joint custody was inappropriate because the parties could not cooperate in raising their son, and it awarded sole custody and decision-making authority to respondent. It also granted petitioner visitation and a consulting role in major educational and medical decisions concerning the child. Petitioner now appeals.

 

For purposes of this appeal, petitioner does not dispute that Family Court properly determined that joint custody was inappropriate due to the acrimonious relationship between the parties (see, Braiman v Braiman, 44 NY2d 584, 589-590). Nor does petitioner directly contest the merits of Family Court's determination based on the record before it. Rather, petitioner contends that Family Court's decision should be reversed and a new hearing held because the [***3]  Law Guardian failed to adequately represent the parties' child during the proceeding. Specifically, petitioner alleges that the Law Guardian's conduct was improper because he advocated a position contrary to the expressed wishes of his client, held a bias against petitioner, revealed his client's confidences to third parties and failed to call an essential witness, respondent's wife.

 

As they are directed solely to the Law Guardian's representation, petitioner's arguments require us to consider the proper role of a Law Guardian in a custody proceeding. While conceding that a Law Guardian would be justified in substituting his or her own judgment of what is in the  [**152]  best interest of a very young child, petitioner contends that where, as here, the represented child is old enough to articulate his or her wishes, the Law Guardian is required to advocate for the result desired by the child and prohibited from interjecting an independent view of what would best meet the child's needs. We cannot agree with such a categorical position and, instead, affirm Family Court based on the circumstances of this case.1

 

 [***4]  The Family Court Act "establishes a system of law guardians for minors who often require the assistance of counsel to help protect their interests and to help them express their  [*755]  wishes to the court" (Family Ct Act § 241 [emphasis supplied]). First and foremost, the Law Guardian is the attorney for the child (Family Ct Act § 242; see, Matter of Jamie EE., 249 AD2d 603) and must take an active role in the proceedings (see, id., at 605-606; Matter of Jamie TT., 191 AD2d 132, 137-138). In that role as attorney, the Law Guardian has the statutorily directed responsibility to represent the child's wishes as well as to advocate the child's best interest. Because the result desired by the child and the result that is in the child's best interest may diverge, Law Guardians sometimes face a conflict in such advocacy (see, Marquez v Presbyterian Hosp., 159 Misc 2d 617, 620-621; Matter of Scott L. v Bruce N., 134 Misc 2d 240, 243-245; Guggenheim, A Paradigm for Determining the Role of Counsel for Children, 64 Fordham L Rev 1399 [***5]  [1996]; Isaacs, The Role of the Lawyer in Representing Minors in the New Family Court, 12 Buff L Rev 501, 506-507 [1963]).

 

It is helpful to a resolution of that conflict to note that 2the child's preference is just one factor the trial court will consider (see, Eschbach v Eschbach, 56 NY2d 167, 173). "While not determinative, the child's expressed preference is some indication of what is in the child's best interests. Of course, in weighing this factor, the court must consider the age and maturity of the child and the potential for influence having been exerted on the child" (id., at 173). Depending on the circumstances, "a Law Guardian may properly attempt to persuade the court to adopt a position which, in the Law Guardian's independent judgment, would best promote the child's interest, even if that position is contrary to the wishes of the child" (Matter of Amkia P., 179 Misc 2d 387, 390; see, Matter of Dewey S., 175 AD2d 920, 921).

 

Here, the Law Guardian took an active role by introducing evidence,  [***6]  presenting a witness, cross-examining all other witnesses, participating in the Lincoln hearing and submitting a closing argument (see, Matter of Burr v Emmett, 249 AD2d 614, 616). Also, despite the Law Guardian's advocacy that custody be awarded to respondent, the consistent strong preference of the parties' child to live with his mother was acknowledged by the Law Guardian and repeatedly communicated to Family Court. In evaluating the Law Guardian's advocacy of a disposition at odds with the child's preference, we note that the child had his 11th birthday during the course of the hearing. Significantly, petitioner testified that the child suffers from several neurological disorders including Tourettes Syndrome, Obsessive-Compulsive Disorder and Attention Deficit Hyperactivity Disorder. The "neutral" psychologist appointed  [*756]  by Family Court opined that the child was certainly intelligent but somewhat less mature than average and could be easily manipulated by adults. The record further indicates that the child may be blinded by his love for petitioner, that she exerts influence on his thoughts concerning custody, and that he did not articulate objective [***7]  reasons for  [**153]  his preference other than his dislike of discipline at respondent's home and the lack of rules and discipline at petitioner's home (see, Matter of Amkia P., supra, at 388). Under these circumstances, we find that the Law Guardian did not act improperly by advocating a position that he believed to be in his client's best interest.

 

Petitioner also complains that the Law Guardian was impermissibly biased against her. A Law Guardian should not have a particular position or decision in mind at the outset of the case before the gathering of evidence (see, Matter of Apel, 96 Misc 2d 839, 842-843). On the other hand, "Law Guardians are not neutral automatons. After an appropriate inquiry, it is entirely appropriate, indeed expected, that a Law Guardian form an opinion about what action, if any, would be in a child's best interest" (Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 241, at 218-219).

 

Here, in responding to a request for his removal made by petitioner on the [***8]  ninth day of the hearing, the Law Guardian stated: "And yes, I am biased in this thing. And I think it's no secret, here, that as the case has progressed, I have become biased in favor of one of the parents, because I believe my client's best interests are best served there." The use of the inflammatory term "bias" was inopportune, as it implied a personal and unreasoned prejudging of the issues. Rather, the record shows that the Law Guardian intended to communicate that after being exposed to the evidence, he had formed a professional opinion concerning the proper disposition of custody and thus had a preference for respondent. There was no evidence that the Law Guardian held any personal prejudice against petitioner. Also, a considered opinion as to the best interest of the child seems a natural result by this stage of the proceeding (see, Matter of Apel, supra, at 843). As the Law Guardian had not met respondent before the trial and formulated his opinion of both parties only in the course of the hearing, we find no evidence of an actual bias against petitioner. Thus, Family Court properly refused to remove the Law Guardian when petitioner applied for such [***9]  relief.

 

Nor did the Law Guardian's actions constitute an improper disclosure of a client confidence. Law Guardians have an attorney-client relationship with their wards (see, Matter of  [*757]  Angelina AA., 211 AD2d 951, 953, lv denied 85 NY2d 808; Matter of Bentley v Bentley, 86 AD2d 926, 927) and generally may not reveal confidences of the client concerning the representation (see, Code of Professional Responsibility DR 4-101 [b] [22 NYCRR 1200.19 (b)]). However, clients, even child clients, may consent to the revelation of confidences by the attorney (see, Code of Professional Responsibility DR 4-101 [c] [1] [22 NYCRR 1200.19 (c) (1)]; Matter of Angelina AA., supra, at 953). Here, the child consented to the Law Guardian telling respondent about a suicide threat made by the child. Therefore, the Law Guardian did not breach a client confidence or violate any ethical rule.

 

Finally, petitioner challenges the effectiveness of the Law Guardian's representation for his failure to call respondent's [***10]  wife as a witness. Having alleged that respondent yielded much of the care and discipline of the parties' child to his wife, petitioner characterizes the wife as the likely primary caregiver of the child if respondent was awarded sole custody and contends that it was absolutely essential that her relationship with the child be examined at the hearing. This contention is also without merit.

 

If petitioner believed respondent's wife to be a necessary witness, petitioner should have called her to testify. While it is likely that petitioner would not have  [**154]  been permitted to impeach her own witness (see, Prince, Richardson on Evidence § 6-419 [Farrell 11th ed]), she could have requested Family Court to allow her to treat respondent's wife as a hostile witness (see, Prince, Richardson on Evidence § 6-228 [Farrell 11th ed]). Regardless of how Family Court might have ruled, petitioner's failure to take any steps to present the testimony of respondent's wife precludes the present claim of prejudice flowing from the Law Guardian's failure to do so. Accordingly, the Law [***11]  Guardian breached no professional duty in failing to call her as a witness.

 

We have considered petitioner's remaining contentions and find them to be without merit.

 

Crew III, J. P., Graffeo, Mugglin and Lahtinen, JJ., concur.

 

Ordered that the order is affirmed, without costs.


In the Matter of LUIS F. FIGUEROA, Respondent, v LYDIA M. LOPEZ, Appellant. CHARLES E. ANDERSEN, as Law Guardian, Appellant.

 

500994

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

 

2008 NY Slip Op 1461; 48 A.D.3d 906; 851 N.Y.S.2d 689;  (3d Dep’t 2008)

 [**906]   [***689]  MEMORANDUM AND ORDER

 

Lahtinen , J.

 

Appeal from an order of the Family Court of  [**907]  Broome County (Pines, J.), entered February 23, 2006, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

 

Respondent (hereinafter the mother) was awarded sole custody of the parties' child in September 2004 and, a year later, petitioner (hereinafter the father) filed a modification petition seeking custody. At the commencement of a hearing on the father's petition, the parties stipulated on the record to joint custody, with the mother having primary physical custody and the father receiving visitation. The Law Guardian stated that he did not consent to the terms of the stipulation and, when he attempted to explain his reasons, he was cut off by Family Court and not permitted to give his reasons. Following entry of an order based on the terms of the stipulation, the Law Guardian and the mother 1 appealed.  [*2] 

 

 

FOOTNOTES

 

1 The mother did not perfect her appeal and it is therefore deemed abandoned (see Pahl v Grenier, 279 AD2d 882, 883 n, 719 N.Y.S.2d 370 [2001]).

 

 

 

Although appointing a Law Guardian is not statutorily required in contested custody proceedings, doing so is the preferred practice (see Matter of Robinson v Cleveland, 42 AD3d 708, 710, 839 N.Y.S.2d 611 [2007]) and such an appointment was important in this proceeding to protect the interests of the child (see Matter of Miller v Miller, 220 AD2d 133, 135, 644 N.Y.S.2d 579 [1996]). Having made the appointment, Family Court cannot thereafter relegate the Law Guardian to a meaningless role (see Frizzell v Frizzell, 177 AD2d 825, 825-826, 576 N.Y.S.2d 439 [1991]). We have previously observed that "a Law Guardian 'must be afforded the same opportunity as any other party to  [***690]  fully participate in a proceeding' " (Matter of White v White, 267 AD2d 888, 890, 700 N.Y.S.2d 537 [1999], quoting Matter of Machukas v Wagner, 246 AD2d 840, 842, 667 N.Y.S.2d 817 [1998], lv denied 91 NY2d 813, 697 N.E.2d 179, 674 N.Y.S.2d 278 [1998] [emphasis omitted]).

 

Here, the Law Guardian stated that he did not consent to the stipulation. When he attempted to explain his reason, Family Court responded that it did not care. Family Court also characterized the Law Guardian's position as ridiculous, without allowing an explanation for his position to be placed on the record. The Law Guardian reportedly had obtained information (including possible domestic violence by the father) which made him concerned about unsupervised visitation by the father. Moreover, while not all improper restrictions imposed on a Law Guardian will result in reversal if the record indicates sufficient facts to uphold the determination (see Matter of White v White, 267 AD2d at 890; see also Matter of Vickery v Vickery, 28 AD3d 833, 834, 812 N.Y.S.2d 180 [2006]; Matter of Kaczynski v Van Amerongen, 284 AD2d 600, 603, 725 N.Y.S.2d 755 [2001]), this sparse record is inadequate. While  [**908]  the Court is troubled by the fact that, despite a hearing transcript of two pages, this appeal took more than a year to perfect and was argued nearly two years from the date of the order appealed from, reversal is nonetheless required.

 

Cardona, P.J., Peters, Spain and Kane, JJ., concur.

 

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Broome County for further proceedings not inconsistent with this Court's decision.


[*1]  IN THE MATTER OF KRISTI L.T., PETITIONER-RESPONDENT, v ANDREW R.., RESPONDENT-APPELLANT.

 

1630 CAF 07-01093

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

 

2008 NY Slip Op 933; 48 A.D.3d 1202; 850 N.Y.S.2d 765 (4th Dep’t 2008)

 [***765]  Appeal from an order of the Family Court, Oneida County (Randal B. Caldwell, J.), entered February 27, 2007 in a proceeding pursuant to Family Court Act article 6. The order, among other things, modified a prior custody order.

 

It is hereby ORDERED that the order so appealed from is unanimously reversed in the exercise of discretion without costs and the petition is denied.

 

Memorandum: Respondent father appeals from an order entered in February 2007 that granted the mother's petition to modify a prior order by awarding the mother primary physical custody of the parties' daughter, who was born in December 2000. At least two other judges had previously entered custody orders in the matter. In our view, Family Court improvidently exercised its discretion in determining that a change of primary physical custody was in the child's best interests.

 

The parties were never married, and they separated when the child was approximately four months old, at which time the mother and child moved in with the mother's parents. In March 2004 the mother sought modification of a prior custody order and was permitted to move with the child and her parents to Connecticut, with monthly visitation to the father. In August 2004 the mother was convicted of driving while intoxicated in Connecticut and received a four-month jail sentence because of her history of such charges. The parties arranged for the father to take physical custody of the child at the end of October 2004, and the parties entered into a stipulation in Supreme Court continuing joint custody and giving the father primary physical custody. A Supreme Court order continuing that arrangement and specifying the terms of visitation to the  [***766]  mother was entered at the beginning of September 2005. The father has had primary physical custody of the child since the end of October 2004.

 

 [**1204]  At issue in this appeal is the order granting the mother's petition in July 2006 seeking primary physical custody of the child. Family Court issued a decision in January 2007 and an order in February 2007 granting the petition following three days of testimony in November  [*2]  2006, and a justice of this Court reinstated the September 2005 order and stayed enforcement of the February 2007 order pending determination of this appeal or until December 31, 2007, whichever occurred first.

 

In granting the mother's petition, the court concluded that there had been a change of circumstances and that a change in custody was warranted in the best interests of the child, relying on the five factors set forth in our decision in Maher v Maher (1 AD3d 987, 989, 767 N.Y.S.2d 179). Although we agree with the court that there was a significant change in circumstances inasmuch as the mother had completed her jail sentence and mandatory programs, had stopped drinking, was living happily with a man and his two children, and was engaged to be married to that man in July 2007, we conclude that the court's determination that it was in the best interests of the child to change her primary physical residence was an improvident exercise of discretion.

 

As we wrote in Maher, among the factors to consider in determining whether a change of primary physical custody is warranted " are the quality of the home environment and the parental guidance the custodial parent provides for the child . . . , the ability of each parent to provide for the child's emotional and intellectual development . . . , the financial status and ability of each parent to provide for the child . . . , the relative fitness of the respective parents, and the length of time the present custody arrangement has been in effect'" (id. at 989). Here, with respect to the five factors set forth in Maher, the evidence presented at the hearing established that the father had been living with his girlfriend, whom he intends to marry, and with their daughter, his girlfriend's daughter, and the subject child. At the time of the hearing, the child was attending kindergarten and school reports showed that after 10 weeks of school her attitude, behavior, participation and work habits were all positive, and her social development, motor skills, knowledge of personal information, and math and language skills were all rated "competently developed." The evidence further established that the child loves both parents, enjoys visitation with her mother, and is comfortable with the other members of both households.

 

With respect to the first factor set forth in Maher, we note that both homes offer a suitable environment and both parents  [**1205]  can provide parental guidance. With respect to the second factor, there is nothing in the record that supports differentiating between the parents with respect to emotional and intellectual development. There is, however, a marked difference with respect to the third factor, the financial ability of each parent to provide for the child. The father's salary is modest, but it is more than three times that of the mother. The mother is financially dependent on her fiance, whose net income as owner of a construction business is more than double that of the father. The mother admitted at the hearing, however, that she had given no thought to how she would support the child if something were to happen to her fiance; or to their relationship. She stated, "I never thought about the future. I just think of now."

 

 [***767]  With respect to the fourth factor, the relative fitness of the respective parents, the mother insists that she is not an alcoholic, although she has been charged with driving while intoxicated several times and was convicted of that crime in Connecticut. She testified that she drinks "like everybody else" but last drank alcohol in October 2004. She attended some Alcoholics Anonymous meetings but did not like them, concluding that "I do much better off on my own dealing, doing things my own way, doing it the way I only know how to do things." The mother's fiance; testified that he has two convictions arising from conduct involving breach of the peace, and that he was convicted of violating an order of protection and of possession of drug paraphernalia. He further testified that the drug charge stemmed from an employee's having left drug paraphernalia in his vehicle. Neither the father nor his girlfriend has a criminal record, and we thus conclude that the record establishes that the father is the more fit parent.

 

 [*3]  The fifth factor concerns the length of time the present custody arrangement has been in effect. The father has had primary physical custody since the end of October 2004, while the mother had primary physical custody from approximately March 2001 until the end of October 2004. Thus, the child has lived with each parent approximately half of her life, and she has had regular visitation with the other parent except during the period in which the mother was in jail.

 

Based on our analysis of the five factors in Maher, and given that the child has expressed positive feelings about all the members of both parents' households, has friends in both communities and was doing well in school at the time of the hearing, we cannot agree with the court that the best interests of the child would be served by a change in her primary physical  [**1206]  residence. Thus, in the exercise of our discretion, we reverse the order and deny the petition.

 

We note that the record establishes that the parties have had proceedings before at least three different judges. The same law guardian was appointed for the child in the first two matters but was not reappointed by Family Court in this matter because the mother objected to his appointment. The court recognized, however, that in appointing a law guardian "the court shall, to the extent practicable and appropriate, appoint the same law guardian who has previously represented the child" (Family Ct Act § 249 [b]). The record establishes that the prior law guardian was available, and we conclude that he should have been reappointed.

 

We do not address the parties' contentions with respect to relocation because in our view relocation is not in issue.

 

Entered: February 1, 2008


Michael Davis, Respondent, v. Michele Davis, Appellant.

 

(698), CA 99-1217

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

 

269 A.D.2d 82; 711 N.Y.S.2d 663 (4th Dep’t 2000)

[*83]   [**664]  Hurlbutt, J.

 

At issue before us on this appeal is whether Supreme Court erred in refusing to remove a Law Guardian who moved on behalf of the parties' children to modify the existing joint custody arrangement. The Law Guardian sought an award of sole custody to plaintiff father, who retained and paid for the services of the Law Guardian. We conclude that the Law Guardian is disqualified from so serving by an inherent conflict of interest. Thus, the order awarding plaintiff sole custody should be reversed, the motion to renew granted, and, upon renewal, the cross motion granted in part, the Law Guardian removed, and the matter remitted to a different Supreme Court Justice for the appointment of a new Law Guardian and further proceedings on the motion and cross motion [***2]  for custody.

 

The underlying facts are as follows. The parties were divorced by judgment entered December 13, 1994. That judgment incorporated a stipulation providing, inter alia, that the parties would share custody and have equal time with their two children, born January 18, 1983, and April 17, 1990. Plaintiff subsequently moved to modify the shared custody schedule and the court appointed attorney Keith I. Kadish, Esq. as Law Guardian for the children in connection with that motion. The parties resolved plaintiff's motion by a stipulation rescheduling the previously ordered shared custody schedule. The stipulation was incorporated into an order, granted June 5, 1997, that modified the judgment of divorce accordingly.

 

It is undisputed that plaintiff contacted Kadish in the fall of 1997 and informed him that the children no longer wished to reside with defendant. After speaking with the children, Kadish informed plaintiff that he would "require a $ 1500 retainer to represent the children." Plaintiff paid Kadish $ 1,500 on March 18, 1998, and a retainer agreement was signed on May 19, 1998. By affidavit reciting his appointment as Law Guardian in the previous postjudgment [***3]  modification application, Kadish sought and obtained an order, dated August 11, 1998, directing defendant to show cause why an order should be not be made, inter alia, modifying custody "from joint legal and physical custody to sole custody for the Plaintiff." Kadish did not disclose in his affidavit that plaintiff had retained him to represent the children.

 

Defendant cross-moved for sole custody and to remove Kadish as Law Guardian on the ground that he was biased in favor of plaintiff. Plaintiff subsequently moved on his own behalf for  [*84]  sole custody, * asserting in a supporting affidavit that "[y]our Deponent freely admits to sending a check to Mr. Kadish in the amount of $ 1,500.00 during the Winter of 1997/98 as he was continuing to provide services and a needed outlet for my children, and it was unfair that he should do so without being compensated."  [**665]  He further asserted, "I have had minimal if any contact with Mr. Kadish other than sending him a fax or two with respect to certain incidents." By order dated September 29, 1998, the court denied defendant's cross motion insofar as it sought removal of Kadish as Law Guardian.

 

 

FOOTNOTES

 

* Because both plaintiff and defendant subsequently sought to change the custody arrangement from joint to sole custody, we do not address the apparent absence of either jurisdiction or standing in connection with the order to show cause obtained by Kadish (cf., Blauvelt v Blauvelt, 219 AD2d 694).

 

 

 

 [***4]  In October 1998 plaintiff paid an additional $ 1,500 to Kadish in anticipation of trial. After plaintiff testified at a deposition concerning the facts of his retention and payment of Kadish, defendant moved unsuccessfully to "reargue" that part of her cross motion seeking removal of Kadish as Law Guardian. The motion was actually one to renew because it was based upon newly discovered evidence (see, Foley v Roche, 68 AD2d 558, 567-568). The court denied that motion and, following a plenary hearing, the court awarded plaintiff sole custody. The court further directed that plaintiff and defendant each pay half of the unpaid balance of the Law Guardian's legal fees.

 

Even assuming, arguendo, that the court properly denied that part of defendant's cross motion seeking removal of Kadish, we conclude that the court should have granted that relief upon renewal of the cross motion, removing Kadish as Law Guardian and appointing a new Law Guardian before conducting the hearing.

 

Pursuant to Family Court Act § 241, "minors who are the subject of family [***5]  court proceedings … should be represented by counsel of their own choosing or by law guardians. This declaration is based on a finding that counsel is often indispensable to a practical realization of due process of law and may be helpful in making reasoned determinations of fact and proper orders of disposition. This part establishes a system of law guardians for minors who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court." Supreme Court has the same power as that of Family Court to appoint a Law Guardian in connection with custody proceedings arising from a divorce action (see, NY Const, art VI, § 7 [a]; Kagen v Kagen, 21 NY2d 532, 536;  [*85]  Frizzell v Frizzell, 177 AD2d 825, 826, n; Borkowski v Borkowski, 90 Misc 2d 957, 958). While appointment of a Law Guardian in contested custody proceedings is not mandatory (see, Family Ct Act § 249 [***6]  [a]; Matter of Farnham v Farnham, 252 AD2d 675, 677; Matter of Church v Church, 238 AD2d 677, 678), it is the preferred practice (see, Matter of Farnham v Farnham, supra, at 677; Matter of Church v Church, supra, at 678), and the failure to appoint a Law Guardian has been held to be an abuse of discretion (see, Vecchiarelli v Vecchiarelli, 238 AD2d 411, 413).

 

Almost invariably, custody proceedings are fiercely contested and involve complex and delicate issues. The children who are the subject of such proceedings must therefore be represented by a Law Guardian who is "absolutely independent of any influence from either parent" ( Matter of Scott L. v Bruce N., 134 Misc 2d 240, 246). As Family Court (Kaiser, J.) cogently observed in Matter of Stien v Stien (130 Misc 2d 609, 615), "[e]ither parent, or both, may try to persuade the court … that he or she only has the child's best interests in mind. Either parent, or both, may--and often does--see the child responding badly to the pulling and hauling of a custody battle and place the blame on the other, exonerating [***7]  him or herself. The bitterer the contention, the greater the need for counsel loyal only to the child, beholden to neither parent, exercising independent judgment, not answerable to either party for her manner of representation."

 

A Law Guardian who has been retained and paid by one of the contesting  [**666]  parents is indelibly cast, either actually or ostensibly, as partial to the parent who hired him or her. Both the best interests of the children and principles of fundamental fairness dictate that such practice not be countenanced. Children may be represented "by counsel to whom they are merely referred by a parent …. Parents may not, however, retain counsel for their children or become involved in the representation of their children because of the appearance or possibility of a conflict of interest or the likelihood that such interference will prevent the children's representation from being truly independent" ( Matter of Fargnoli v Faber, 105 AD2d 523, 524, appeal  [***8]  dismissed 65 NY2d 631, mot to vacate denied 65 NY2d 783, citing Robert N. v Carol W., NYLJ, Sept. 30, 1983, at 15, col 6; see also, P. v P., NYLJ, Nov. 10, 1992, at 29, col 3; see generally, Besharov, Practice Commentaries, McKinney's Cons Laws of NY, Book 29A, Family Ct Act § 249, at 242-243). Here, plaintiff's retention and payment of the Law Guardian created an unacceptable actual or ostensible bias in favor of plaintiff.

 

 [*86]  Accordingly, the order awarding sole custody to plaintiff should be reversed, the motion to renew granted, and, upon renewal, the cross motion granted in part, the Law Guardian removed, and the matter remitted to a different Supreme Court Justice for the appointment of a new Law Guardian and further proceedings on the motion and cross motion for custody. We express no view concerning the merits of the court's award of custody.

 

Hayes, J. P., Wisner, Scudder and Kehoe, JJ., concur.

 

Order unanimously reversed, on the law, without costs, motion to renew granted, and, upon renewal, cross motion granted in part, Law Guardian removed and matter remitted to Supreme Court for further [***9]  proceedings in accordance with the opinion by Hurlbutt, J.


In the Matter of Linda F. Fargnoli, Respondent, v. Donald Faber, Respondent. Tonni Faber et al., Appellants

 

[NO NUMBER IN ORIGINAL]

 

Supreme Court of New York, Appellate Division, Third Department

 

105 A.D.2d 523; 481 N.Y.S.2d 784 (3d Dep’t 1984)

[*523]   [**785]  Appeal, by permission, from an order of the Family Court of Delaware County (Estes, J.), entered April 2, 1984, which, inter alia, denied the motion of the parties' minor children for substitution of counsel or, in the alternative, for the appointment of a guardian ad litem.

 

Movants are the two minor daughters of the parties to this proceeding, which was commenced by petitioner to resolve a bitter dispute over respondent's visitation rights. To protect the daughters' interests during the proceeding, a Law Guardian was appointed to represent them but, during the course of the proceeding, the daughters sought to substitute counsel of their own choosing, the Rural Legal Rights Foundation (the Foundation), for the Law Guardian, or, in the alternative, to have a staff attorney of the Foundation appointed as guardian ad litem for them. The Foundation further sought to disqualify respondent's attorney on the ground that he was previously involved in the merits of the case [**786]  when he served as Family Court Judge of Delaware County.

 

In a well-drafted opinion, Family Court denied [***2]  the motion to substitute the Foundation as the daughters' counsel because it appeared that petitioner had initiated and been involved in the Foundation's representation of the daughters, thereby interfering with the independent and impartial representation which must be afforded children in these situations. Family Court further refused to appoint the staff member as guardian ad litem because such an appointment was not appropriate in Family Court proceedings such as this. Family Court also, inter alia,  [*524]  removed the Law Guardian, appointed a substitute Law Guardian, and enjoined the Foundation and petitioner from interfering with the representation provided to the daughters by the substituted Law Guardian. From the order entered thereon, the daughters appeal. *

 

 

FOOTNOTES

 

* Respondent has not appealed from so much of the order as disqualified his attorney and, thus, we do not address this aspect of the order.

 

 

 

Initially, Family Court properly denied the alternative motion to appoint the staff attorney of [***3]  the Foundation as guardian ad litem for the daughters. It is evident that guardians ad litem should not normally be appointed when minors are the subject of proceedings in Family Court, but that Law Guardians or counsel of their own choice should represent the minors (see Family Ct Act, §§ 241, 249, subd [a]; Besharov, Practice Commentary, McKinney' Cons Laws of NY, Book 29A, Family Ct Act, § 241, p 188; see, also, Matter of Anonymous v Anonymous, 70 Misc 2d 584, 585).

 

We further conclude that Family Court properly denied the daughters' motion to substitute counsel of their own choosing for the Law Guardian. Children are entitled to independent representation in Family Court proceedings because their interests are at stake and because neither the parents, the parents' counsel, nor the court can properly represent the children's interest (see Family Ct Act, §§ 241, 249, subd [a]); Borkowski v Borkowski, 90 Misc 2d 957, 959-961). Thus, children involved in Family Court proceedings can be represented by counsel of their own choosing (Family Ct Act, §§ 241, 249, subd [a]) and even by counsel to whom they are merely referred by a parent (see Doe v Doe, 92 Misc 2d 184,  [***4]  190). Parents may not, however, retain counsel for their children or become involved in the representation of their children because of the appearance or possibility of a conflict of interest or the likelihood that such interference will prevent the children's representation from being truly independent (see Robert N. v Carol W., NYLJ, Sept. 30, 1983, p 15, col 6; Besharov, Practice Commentary, McKinney's Cons Laws of NY, Book 29A, Family Ct Act, § 249, p 202).

 

In this case, there is sufficient evidence to cast doubt on whether the Foundation can provide truly independent representation of the daughters' interests. Petitioner signed an authorization for release of records and information which indicates that the staff attorneys for the Foundation were her attorneys for at least some period of time. Furthermore, in a letter from a staff attorney for the Foundation dated February 21, 1984, petitioner was notified by the Foundation whether to attend a particular counseling session. Although petitioner, her  [*525]  attorney and the Foundation deny that the Foundation represented petitioner and assert that the Foundation can provide independent representation to the daughters,  [***5]  the apparent contacts between petitioner and the Foundation, as enumerated above, demonstrate, at a minimum, the appearance of a possible conflict of interest, which may infringe upon the independent representation to which the daughters are entitled. Thus, regardless of the precise relationship between the Foundation and petitioner, if any, this appearance of a possible conflict of interest warranted the prudent decision to deny the motion [**787]  permitting the Foundation to be substituted as the daughters' counsel.

 

We further agree that the removal of the former Law Guardian and replacement with a new attorney to act as Law Guardian was wise. By providing the daughters with new representation untainted by the accusations and innuendo which seem to have thus far characterized this proceeding, we are hopeful that this matter can proceed to a prompt resolution designed to promote the best interest of the daughters.

 

Finally, we are of the view that Family Court had authority and grounds to enjoin the Foundation and petitioner from certain disparaging and disruptive communications concerning the daughters' representation by the Law Guardian. There is evidence that petitioner [***6]  acted in a manner that reflected adversely upon the former Law Guardian and might have undermined his representation of the daughters. There is further evidence, as discussed above, of the appearance of a possible conflict of interest on the part of the Foundation. Family Court was, thus, concerned that the daughters' right to independent representation in this proceeding might be affected by further communications from the Foundation and/or petitioner. Accordingly, an injunction was permissible (see CPLR 6301). Inasmuch as the injunction is narrowly directed and proscribes only certain communications which would be improper in any event (see Robert N. v Carol W., NYLJ, Sept. 30, 1983, p 15, col 6, supra; Code of Professional Responsibility, EC 7-37), we are satisfied that no First Amendment rights have been infringed.

 

Order affirmed, without costs.


Dominick Corigliano, Appellant, v. Rosa M. Corigliano, Respondent.

 

2001-03382

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

 

297 A.D.2d 328; 746 N.Y.S.2d 313 (2d Dep’t 2002)

 

 [*328]   [**314]  Ordered that the order is modified by deleting the provisions  [*329]  thereof denying those branches of the cross motion which were to modify the order of the Family Court, Westchester County, entered June 2, 1999, by [***2]  awarding custody of the parties' eldest child to the plaintiff father and to appoint a law guardian to represent that child separately from his siblings, and substituting therefor provisions (1) directing an evidentiary hearing with respect to that branch of the cross motion which was to modify the prior order of the Family Court, Westchester County, entered June 2, 1999, and (2) appointing a law guardian to represent the eldest child separately from his siblings; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to Supreme Court, Westchester County, for further proceedings consistent herewith.

 

A parent who seeks a change of custody is not automatically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing (see Matter of Coutsoukis v Samora, 265 AD2d 482, 483; Teuschler v Teuschler, 242 AD2d 289, 290; Matter of Miller v Lee, 225 AD2d 778, 779). A change of custody should be made only if the totality of the circumstances warrants a modification (see Friederwitzer v Friederwitzer, 55 NY2d 89, 95-96).  [***3] 

 

The plaintiff father alleges that the defendant mother now works full time in Connecticut and attends college three nights a week. He further alleges that the parties' eldest child lives with his paternal grandparents during the school week and has repeatedly expressed a desire to reside  [**315]  with him. In view of these allegations, an evidentiary hearing with respect to the branch of the father's cross motion which was, inter alia, to award custody of the subject child to him, is warranted.

 

The Supreme Court also erred in denying that branch of the father's cross motion which was to appoint a law guardian to represent the subject child separately from his siblings. As the law guardian adopted the position that the subject child remain with the mother and his two siblings at the outset of the proceeding, without making an appropriate inquiry, the potential conflict of interest in the law guardian's continued representation of the subject child warrants the appointment of an independent law guardian for the subject child (cf. Matter of Carballeira v Shumway, 273 AD2d 753; Matter of Rosenberg v Rosenberg, 261 AD2d 623, 624).

 

The appellant's [***4]  remaining contention is without merit.

 

Santucci, J.P., H. Miller, Schmidt and Cozier, JJ., concur.


Gary D. B., Appellant, v. Elizabeth C. B., Respondent.

 

(425.1), CA 00-02464

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

 

281 A.D.2d 969; 722 N.Y.S.2d 323 (4th Dep’t 2001)

 

 [*969]   [**324]  Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: The parties were married in 1976 and have four children: Jessica, born October 14, 1983; Erin, born January 3, 1986; Nicholas, born March 10, 1989; and Austin, born June 6, 1991. Defendant suffered from alcoholism and drug dependency and, despite efforts at rehabilitation, continued to drink and abuse controlled substances during the marriage. In December 1992 plaintiff obtained an order granting him temporary custody of the children, as well as an order of protection from Family Court. Those orders were extended by consent of the parties while defendant continued to struggle with her addictions. Plaintiff commenced an action for divorce and in 1995 obtained a judgment of divorce based upon defendant's cruel and inhuman treatment of him. The judgment incorporated the stipulation of the parties that plaintiff would have sole custody of the children and defendant  [**325]  would have only [***2]  supervised visitation with the children because she was residing in a halfway house at that time. The agreement provided that the custody and visitation arrangement could be reviewed by the court after a period of one year. In order to be available to his children, plaintiff closed his law office in downtown Buffalo and began to practice law from his home.

 

In July 1996 defendant stopped drinking as the result of having what she described at trial as an "epiphany," and her visitation rights with the children eventually were expanded by stipulation of the parties. In February 1999 defendant commenced this proceeding seeking custody of all the children, after the eldest daughter, then age 15, came to live with defendant after having an argument with plaintiff. Supreme Court granted the petition following a hearing, awarded sole custody of the children to defendant and limited visitation to plaintiff. The court stated that it was a de novo custody determination because an order of permanent custody had never been entered. The court determined that plaintiff's parenting skills are not adequate to meet the needs of the children and that defendant is better equipped to meet those [***3]  needs.

 

On appeal, plaintiff contends that the court erred in failing  [*970]  to give deference to a long-standing custody arrangement in the absence of a determination that he was an unfit parent, and that the court's determination that he was not meeting the needs of the children is not supported by the record. We agree, and modify the order insofar as it awarded custody of Erin, Nicholas and Austin to defendant. We affirm the order insofar as it awarded custody of Jessica to defendant, however, because the record establishes that it is not in the best interests of Jessica to return to plaintiff's custody at this time.

 

Every custody determination must focus on the best interests of the children, and the continuity and stability of the existing custodial arrangement, whether established by agreement or order, is a weighty factor to consider in determining their best interests (see, Fox v Fox, 177 AD2d 209, 210). "[T]he existing arrangement should be changed based only upon ' "countervailing circumstances on consideration of the totality of circumstances" ' " ( [***4]  Fox v Fox, supra, at 210-211, quoting Friederwitzer v Friederwitzer, 55 NY2d 89, 95; see also, Salerno v Salerno, 273 AD2d 818). "Custody of children should be established on a long-term basis, wherever possible; children should not be shuttled back and forth between divorced parents merely because of changes in marital status, economic circumstances or improvements in moral or psychological adjustment, at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian" (Obey v Degling, 37 NY2d 768, 770).

 

Here, although the prior custody orders were styled "temporary," the children were in plaintiff's custody from 1992 until 1995 pursuant to those orders, and they have been in plaintiff's sole custody since 1995 pursuant to the judgment of divorce incorporating the stipulation of the parties. Consequently, the court should not have changed custody in this case in the absence of evidence that plaintiff was an unfit parent. In that regard, we conclude that the court's determination that plaintiff's parenting skills are inadequate to meet the needs of [***5]  the children lacks a sound and substantial basis in the record (see, Alanna M. v Duncan M., 204 AD2d 409). Although plaintiff is more strict and demanding than defendant, has a less nurturing parenting style, and expects more from the children than does defendant, the record supports the conclusion that plaintiff has adequately provided for the needs of the children through the many years when defendant was unable to provide any emotional support for them as a result of her  [**326]  alcohol and drug dependencies. The three younger children are doing well in school and neighbors, friends and fellow church members  [*971]  testified that plaintiff enjoys a good relationship with the children. The court-appointed psychologist concluded that all of the children had been damaged by defendant's alcoholism, which she characterized as a family disease. She further concluded that the parties have not dealt effectively with the issue of alcoholism with the children, and have instead blamed each other for their problems. The court, however, appeared to attribute most of the blame for the problems to plaintiff.

 

We find it significant that defendant failed to present [***6]  medical evidence to support her testimony that she has conquered alcoholism and is no longer in danger of backsliding. Although defendant testified that she stopped drinking in 1996, she had stopped drinking for a period of seven years earlier in the marriage before beginning to drink again. Defendant also admitted that she continues to take Dexedrine, a drug that she has abused in the past. An adverse inference should have been drawn against defendant for failing to present testimony from her present treating psychiatrist that she is able to take Dexedrine with no danger of abusing it and that she is not in danger of resuming her drinking.

 

We conclude that plaintiff should retain sole custody of Erin, Nicholas and Austin, and that defendant should have visitation with those children as set forth in the order with reference to plaintiff. We conclude, however, that this is one of those rare cases where the breakdown in communication between the parent and the child that would require a change of custody is "applicable only as to the best interests of one of several children" (Eschbach v Eschbach, 56 NY2d 167, 172; see also, Mitzner v Mitzner, 209 AD2d 487, 488-489; [***7]  Fox v Fox, supra, at 213). Jessica, in what a psychologist described as an attempt to manipulate the situation to remove herself from plaintiff's discipline, made superficial cuts to her wrists. Following that incident, she went to live with her maternal grandparents and then with defendant. Jessica, who is now 17 years old, has continued to reside with defendant. Given those circumstances, and in view of Jessica's age, we affirm that portion of the order awarding custody of Jessica to defendant and holding visitation between plaintiff and Jessica in abeyance pending their participation in counseling and further order of the court. We also affirm that portion of the order requiring the parties and the children to participate in counseling to improve communications among family members.

 

Although not determinative here, we are compelled to address two other troubling issues that are brought to our attention on this appeal. During trial, after the children began to  [*972]  express different preferences concerning the parent with whom they wished to live, the Law Guardian moved to withdraw from representing all of the children. The court should have granted [***8]  that motion because the Law Guardian articulated a conflict of interest (cf., Matter of Rosenberg v Rosenberg, 261 AD2d 623, 624).

 

Additionally, the court erred in summarily denying plaintiff's motion to strike the testimony of the court-appointed psychologist. The court had issued an order appointing a psychologist to evaluate the parties, defendant's parents and the children (see, 22 NYCRR 202.18). The order provided that the compensation for the forensic evaluations and any court appearances was to be paid proportionately to the ratio between adult parties and children evaluated. The adult parties were to compensate the expert for their own proportionate shares of the evaluation cost, and the children's portion was to be paid by the Law Guardian Program. The order provided for a maximum fee of  [**327]  $ 2,000, and further provided that, "if it is anticipated that the evaluation may exceed the maximum limit, then a supplemental request will be made to the Court for additional compensation." Defendant called the court-appointed psychologist as her witness and, during direct examination, it was revealed that defendant had paid an additional fee to the [***9]  psychologist of $ 800. By paying the expert additional amounts without seeking further order of the court, defendant created the appearance of impropriety (see generally, Davis v Davis, 269 AD2d 82), and the court should not have summarily denied plaintiff's objection to her testimony.

 

We modify the order, therefore, by awarding custody of Erin, Nicholas and Austin to plaintiff with visitation to defendant as set forth in the order with reference to plaintiff. (Appeal from Order of Supreme Court, Erie County, Sconiers, J.--Custody.)

 

Present--Pigott, Jr., P. J., Pine, Hayes, Scudder and Lawton, JJ.


Commissioner of Social Services of the City of New York, Petitioner-Respondent, In the Matter of Elianne M., etc., et al., Appellants, Children Alleged to be neglected by Stephanie B., Respondent-Respondent.

 

49369

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

 

196 A.D.2d 439; 601 N.Y.S.2d 481 (1st Dep’t 1993)

 

 [**481]   [*440]  Order, Family Court, Bronx County (Cira Martinez, J.), entered on or about February 8, 1993, which denied the application of the Law Guardian to be relieved and denied the application of the child Elianne M. to permit the law firm of Sullivan & Liapakis to be substituted as counsel, unanimously reversed, on the law, the Law Guardian's application to be relieved is granted and the law firm of Sullivan & Liapakis is substituted as counsel, and the matter is remitted to the Family Court for further proceedings, without costs.

 

The Family Court erred in denying the Law Guardian's motion to be relieved and  [**482]  the child's application for substitution of counsel. Family Court Act §§ 241, 249(a) specifically provide for representation of a child by counsel of his or her own choosing. Children are entitled to counsel of their choice because it is their interests that are at stake (see Matter of Fargnoli v. Farber, 105 AD2d 523, 481 N.Y.S.2d 784, appeal dismissed 65 NY2d 631).

 

The Law Guardian's [***2]  role is to provide assistance of counsel to help protect the interests of minors who are the subject of Family Court proceedings and "to help them express their wishes to the court" (Family Ct Act § 241; see also, Matter of Scott L. v. Bruce N., 134 Misc 2d 240, 242). Where, as here, both the Law Guardian and the teenage child have explicitly expressed their failure to communicate, the child has indicated her lack of trust in her appointed representative, her fear that this representative will not effectively communicate her wishes to the court and her belief that the Law Guardian has been influenced by her adoptive mother, the proper course was to relieve the Law Guardian and permit substitution of counsel of the child's choosing.

 

ENTERED: August 12, 1993


In the Matter of H. Children, Children Alleged to be Abused. Hugh H., Respondent.

 

94-105

 

FAMILY COURT OF NEW YORK, KINGS COUNTY

 

 

160 Misc. 2d 298; 608 N.Y.S.2d 784 (Fam Ct. Kings Co. 1994)

[*299]  Philip  [**784]  C. Segal, J.

 

 

At issue in this child abuse proceeding is whether the court-assigned Law Guardian for the subject children may be permitted to withdraw from the continued representation of one child but not the other because of a conflict of interest between the two children. As follows, the court determines that the Law Guardian's continued representation of either child presents an irreconcilable conflict of interest and creates an appearance of impropriety. Accordingly, the court directs that she and her law office have no further involvement with this matter.

 

 

I.

 

 

The Commissioner of Social Services filed the present petition against respondent in November 1993, on behalf of respondent's two minor children: Rhomonia, age 16; and Christopher,  [***2]  age 14. Specifically, respondent is charged with sexually abusing Rhomonia. Although no such abuse is alleged as to Christopher, a "derivative finding" is sought as to him (see, e.g., Matter of Dutchess County Dept. of Social Servs. v Douglas E., 191 AD2d 694 [2d Dept 1993]; Matter of Cruz, 121 AD2d 901 [1st Dept 1986]).

 

 

At the outset of the proceeding, the court appointed a Law Guardian to represent both children (Family Ct Act § 249 [a]). Shortly  [**785]  thereafter, she interviewed them both. According to the Law Guardian, each child is mature, intelligent, and articulate. In addition, they have divergent views as to the existence of the alleged sex abuse and the relief that ultimately should be granted by the court. In fact, the Law Guardian believes that Christopher may be called as a witness by respondent at the fact-finding hearing and that she may be required to cross-examine the child. Based on this assessment, the Law Guardian has concluded that there is a conflict of  [*300]  interest which prevents her continued representation of both children. In an attempt to remedy this situation, she now moves to withdraw as to Christopher but seeks [***3]  leave to continue as Law Guardian for Rhomonia. Respondent agrees that a conflict of interest exists, but takes the position that the Law Guardian should be disqualified entirely. For the following reasons, the court concludes that ethical and public policy considerations mandate that the present Law Guardian be relieved and that separate attorneys (without any prior connection with the parties or the Law Guardian and her office) be assigned to represent each of the children.

 

 

II.

 

 

The Code of Professional Responsibility and existing precedent, with rare exception, require that an attorney who undertakes the joint representation of two parties in a lawsuit not continue as counsel for either one after an actual conflict of interest has arisen. (Code of Professional Responsibility EC 5-15; DR 5-105 [22 NYCRR 1200.24]; People v Shinkle, 51 NY2d 417 [1980]; Greene v Greene, 47 NY2d 447 [1979]; Cardinale v Golinello, 43 NY2d 288 [1977].) This is mandated because continued representation for either or both parties would necessarily result in a violation of one of the following ethical rules: the requirement to preserve client confidences (Code of Professional [***4]  Responsibility EC 4-1; DR 4-101 [22 NYCRR 1200.19]); or the obligation to represent a client zealously (Code of Professional Responsibility EC 7-1; DR 7-101 [22 NYCRR 1200.32]).

 

The Court of Appeals repeatedly has stressed that the duty to maintain client confidences is fundamental and basic to a proper attorney-client relationship; this undertaking exists by virtue of the attorney's fiduciary relationship with his or her client and as a matter of public policy. ( Greene v Greene, supra, at 451; Cardinale v Golinello, supra, at 295.) In fact, this duty continues even after the attorney's employment is terminated. ( People v Shinkle, supra; Matter of Hof, 102 AD2d 591 [2d Dept 1984].) Of equal importance is the attorney's duty to pursue vigorously his or her client's interests. ( Greene v Greene, supra, at 451.) To fulfill this obligation, an attorney surely is expected to use all available information to advance those interests.

 

Here, there is a "reasonable probability" that Christopher  [*301]  revealed confidences to the Law Guardian relevant to the subject matter of this litigation ( Greene v Greene, supra, at 453). The ethical dilemma therefore [***5]  created for the Law Guardian is whether she would use those confidences to Rhomonia's advantage or decline to do so to her disadvantage. By making either choice, the Law Guardian would have to violate one of the above-described ethical precepts. The disqualification of the Law Guardian in these circumstances is therefore required, even in the absence of evidence that Christopher and Rhomonia's interests actually will be prejudiced. "[R]easonable probability" of prejudice is a sufficient basis for the disqualification. (Supra.) Moreover, any doubt about the existence of a conflict should be resolved in favor of disqualification. ( Matter of Hof, supra, at 597.)

 

 

Public policy considerations also dictate the disqualification of an attorney where her continued representation would create an "appearance of impropriety … however slight." ( People v Shinkle, supra, at 421; see, Code of Professional Responsibility EC 9- 6.) As explained by the Court of Appeals, except for "rare and conditional exceptions, the lawyer  [**786]  may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting,  [***6]  the obligations of the professional relationship." ( Matter of Kelly, 23 NY2d 368, 376 [1968].) In the present circumstances, the appearance of impropriety would exist and have a potentially negative impact on Christopher. At the least, he "is entitled to freedom from apprehension and to certainty that his interests will not be prejudiced" by the Law Guardian's continued representation of Rhomonia. ( Cardinale v Golinello, supra, at 296.)

 

 

Finally, the court notes that in some circumstances, an adult may be permitted to waive a conflict of interest. ( People v Gomberg, 38 NY2d 307 [1975]; Matter of Kelly, supra.) As a matter of law, however, a minor must be presumed to lack the ability to knowingly make such a waiver. In any event, no claim is made here that Christopher has done so.

 

 

In view of the foregoing, both the Law Guardian and her office shall be disqualified from further involvement in this case. ( People v Shinkle, supra;  [***7]  Cardinale v Golinello, supra, at 296; Matter of Brooke D., 193 AD2d 1100 [4th Dept 1993].) New assignments for the representation of each child will be made immediately pursuant to County Law article 18-B.


In the Matter of the Custody of Rebecca B., an Infant. Renee B., Respondent; Michael B., Appellant.

 

58041, 58042

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

 

227 A.D.2d 315; 642 N.Y.S.2d 685 (1st Dep’t 1996)

 

 [*685]  Orders, Family Court, New York County (Judith Sheindlin, J.), entered on or about August 18 and November 8, 1995, which, in a child custody proceeding, denied respondent's motion to dismiss the proceeding on the ground that the child's Law Guardian, Lawyers for Children, Inc., lacked standing to bring it, granted the Law Guardian's motion to quash subpoenas served upon it and the social worker it hired, and denied respondent's motion to disqualify the court-appointed psychiatrist, unanimously affirmed, without costs.

 

In its dual role as advocate for and guardian of the subject child (see, Family Ct Act § 241; Matter of Samuel W., 24 NY2d 196, revd on other grounds sub nom. In re Winship, 397 US 358; Marquez v Presbyterian Hosp., 159 Misc 2d 617), Lawyers for Children clearly has an interest in the welfare of the child sufficient to give it standing to seek a change of custody (cf., Matter of Janet S. M. M. v Commissioner of Social Servs., [**2]  158 Misc 2d 851). The child's communications with the Law Guardian ( Matter of Angelina AA. (211 AD2d 951, 953, lv denied 85 NY2d 808), as well as with the social worker hired by the Law Guardian ( Matter of Lenny McN., 183 AD2d 627), implicate the attorney-client privilege, or the immunity from disclosure for attorney work product and material prepared for litigation, and thus, the subpoenas demanding the testimony of the Law Guardian and the social worker were properly quashed. Respondent's motion to disqualify the court-appointed psychiatrist for bias was also properly denied for lack of proof (see, Virgo v Bonavilla, 71 AD2d 1051, affd 49 NY2d 982).

 

Concur--Sullivan, J. P., Rosenberger, Ellerin and Mazzarelli, JJ.

                   


In the Matter of Scott Herald, Respondent, v. Lea Herald, Appellant. In the Matter of Lea Herald, Appellant, v. Scott Herald, Respondent. (Appeal No. 1.)

 

CAF 00-02731

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

 

305 A.D.2d 1080; 759 N.Y.S.2d 275 (4th Dep’t 2003)

 [*1080]   [**275]  Appeal from an order of Family Court, Erie County (Mix, J.), entered October 11, 2000, which granted sole custody of the child to Scott Herald and supervised visitation to Lea Herald.

 

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

 

Memorandum: Family Court did not abuse its discretion in denying the motion of Lea Herald (mother) to recuse itself in this custody matter. According to the mother, the court could not be fair because an article written by the child's maternal grandmother and published in the local newspaper was critical of the delays involved in litigating this matter. Here, the court addressed the subject matter of the article in open court, stating, inter alia, that the  [**276]  court had [***2]  not in fact delayed the litigation. The court noted that the child's maternal grandmother was no longer a party to the litigation, and the court [*1081]  stated that it was able to decide the case on its merits. "Where, as here, there is no allegation that recusal is statutorily required (see, Judiciary Law § 14), the matter of recusal is addressed to the discretion and personal conscience of the [judge] whose recusal is sought" (Matter of Card v Siragusa, 214 A.D.2d 1022, 1023, 626 N.Y.S.2d 336 [1995]; see Matter of Petkovsek v Snyder, 251 A.D.2d 1086, 674 N.Y.S.2d 208 [1998]).

 

We further reject the contention of the mother that the court erred in denying her motion to disqualify the Law Guardian. Although the mother sought disqualification on the ground that the Law Guardian might be called as a witness and thus that the advocate-witness rule would thereby be violated, she failed to meet her burden of establishing the necessity for that testimony (see Martinez v Suozzi, 186 A.D.2d 378, 588 N.Y.S.2d 175 [1992]; see generally Broadwhite Assoc. v Truong, 237 A.D.2d 162, 654 N.Y.S.2d 144 [1997]). In any event, the Law Guardian [***3]  was not in fact called as a witness, and thus the advocate-witness rule was not implicated.

 

Present--Pine, J.P., Wisner, Kehoe, Burns and Gorski, JJ.


In the Matter of Jamie C. Morgan, Respondent, v. Stacey A. Becker, Appellant.

 

 

 

77272

 

 

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

 

 

 

245 A.D.2d 889; 666 N.Y.S.2d 820  (3d Dep’t 1997)

 

 [*889]   [**821]  Spain, J.

 

 

The parties' son, Brandon (born in 1994), was born while the parties cohabitated; during this period of cohabitation respondent's daughter, Rachel, born (in 1991) from a previous relationship, also resided with the parties. They cohabitated until August 1994 at which time they separated and entered into an agreement providing respondent with custody of Brandon; a Family Court order incorporating the agreement was entered August 31, 1994. Thereafter, petitioner exercised regular visitation with Brandon and during this period of time another child,  [*890]  Alexander (born [***2]  in 1995) was conceived. Although petitioner initially refused involvement with Alexander and denied paternity, following the results of blood tests in March 1996 he admitted paternity and sought involvement in Alexander's life. By petition dated December 7, 1995 and amended in March 1996 to include, inter alia, a request for custody of Alexander, petitioner sought custody of both children. Following several hearing days in April and May 1996, at which evidence was limited to events following the entry of the August 1994 order, Family Court rendered a decision and order granting petitioner custody of the children. Respondent appeals.

 

 

 

We affirm. It is beyond dispute that the best interests of the children is the primary consideration in a child custody matter (see, Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89; Matter of Davis v Davis, 240 AD2d 928; Matter of King v King, 225 AD2d 819, lv denied 88 NY2d 806;  [**822]  see also, Domestic Relations Law § 240 [1]); moreover, there is no prima facie right to the custody of a child in either parent (see,  [***3]  Domestic Relations Law § 70 [a]). Further, the alteration of an established custody arrangement will be ordered only on a sufficient showing of a change in circumstances warranting a real need for change in order to insure the continued best interests of the children (see, Matter of Kamholtz v Kovary, 210 AD2d 813, 814; Matter of Williams v Williams, 188 AD2d 906, 907; Matter of Van Hoesen v Van Hoesen, 186 AD2d 903; see also, Family Ct Act § 652 [a]).

 

 

 

 

The determination of best interest requires an inquiry into a number of factors "including the quality of the parents' home environments, the length of time the present custody arrangement has been in place and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development" ( Matter of Irwin v Neyland, 213 AD2d 773, 774). We are also guided by recognition of Family Court's unique opportunity to assess the credibility of the witnesses and observe their demeanor, as well as the principle that the factual findings of Family Court are afforded great deference on appeal (see, Matter of De Losh v De Losh, 235 AD2d 851, 852, [***4]  lv denied 89 NY2d 813; Matter of Nicotera v Nicotera, 222 AD2d 892; Matter of Kamholtz v Kovary, supra, at 814) and will not be disturbed if supported by a sound and substantial basis in the record (see, Matter of Copeland v Copeland, 232 AD2d 822, lv denied 89 NY2d 806; Matter of Cline v Cline, 229 AD2d 671; Matter of Betancourt v Boughton, 204 AD2d 804; Matter of Bogert v Rickard, 199 AD2d 587, 588).

 

 

 

 

Here, we conclude that the record amply supports Family  [*891]  Court's determination. In a lengthy and thorough decision, Family Court set forth what it determined to be substantial changes in the lives of the parties which directly affected the children following the 1994 stipulation. The record reveals that, at the time of the hearing, respondent was newly employed at a restaurant in Chemung County which required a lengthy commute to work and to her day care provider in Tompkins County, all of which resulted in excessive day care. She also worked as a driver for a limousine service and routinely picked up the children after midnight following [***5]  work. Further, during one 16-month period respondent used the services of upwards of seven different day care providers and the care the children were provided by respondent and her boyfriend raise many questions relating to their welfare.

 

 

 

Significantly, the record reveals, inter alia, that the children were left overnight with their day care provider on a number of occasions; on two particular occasions in order to allow respondent to engage in nonwork-related activities, one of which was purely social and the other was to attend a limousine drivers' convention. One day care provider testified that when the children were dropped off, respondent did not provide proper supplies or clothing. The record supports Family Court's findings that on one occasion respondent left the children, including Alexander in his car seat, at about 2:00 A.M. in the living room of her day care provider without notifying the day care provider who was asleep in another part of the house; that in November 1995 she left Alexander outside on an unheated porch during the night because he was crying and she needed sleep; and that she once left the children with an unfamiliar 17-year-old boy when her [***6]  regular day care provider was late getting home. The record also reveals that in September 1995 respondent's boyfriend, with whom she and the children resided at the time of the hearing, left Brandon in his car unattended when he went into a supermarket to get himself a soda.

 

 

 

Family Court's finding that respondent harbors deep resentment toward petitioner, which affects both parties' ability to care for the children, is also supported in the record; in Family Court's view, and we agree, petitioner  [**823]  demonstrated a greater ability to handle the antagonistic nature of the parties' relationship in a positive manner for the welfare of the children. There is also support in the record for Family Court's findings that petitioner, aided by his fiance, can provide a more stable, financially secure and positive environment for the children including, but not limited to, a more structured day care situation  [*892]  without excessive travel time, a larger and more orderly and tidy home, and a less emotionally charged home life. Examining the totality of the circumstances, including the various factors that are to be considered in a best interest analysis (see, Young v Young, 212 AD2d 114, 117-118; [***7]  Matter of Belden v Keyser, 206 AD2d 610, 611), we find that Family Court's award of custody to petitioner has a sound and substantial basis in the record (see, Matter of Beyer v Tranelli-Ashe, 195 AD2d 972).

 

 

 

We further conclude that Family Court properly precluded the introduction of evidence which predated the August 1994 agreement. Notably, it was respondent's attorney who asked the court, at a point early in the hearing, to exclude evidence prior to August 1994; this ruling actually limited the scope of respondent's evidence (compare, Matter of Painter v Painter, 211 AD2d 993). Furthermore, we find no support in the record for petitioner's contention that the Law Guardian was biased or that her report and recommendation in favor of petitioner unduly influenced the court into making an erroneous determination. Although, in our view, it was inappropriate for Family Court to allow the Law Guardian to be called as a witness for one of the parties, under the circumstances of this case there was no harm to the children, especially when the Law Guardian's testimony was limited to her observations during home visits to each of the [***8]  parties' residences. Additionally, the children in this proceeding were too young to be interviewed; thus, the issue of confidentiality with respect to any privileged communications between the children and their Law Guardian did not exist (see, Matter of Angelina AA., 211 AD2d 951, 953, lv denied 85 NY2d 808; Matter of Bentley v Bentley, 86 AD2d 926, 927).

 

 

 

We have considered respondent's remaining contentions and find them to be without merit.

 

Mercure, J. P., Casey, Peters and Carpinello, JJ., concur.

 

Ordered that the order is affirmed, without costs.


In the Matter of ANGELINA "AA" 1 et al., Alleged to be Abused and/or Neglected Children. OTSEGO COUNTY DEPARTMENT OF SOCIAL SERVICES, Respondent; v. JOSEPH "BB", 1 Appellant.

 

 

1 Fictitious names.

 

70350

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

 

211 A.D.2d 951; 622 N.Y.S.2d 336 (3d Dep’t 1995)

[*951]   [**337]  MEMORANDUM AND ORDER

 

Peters, J.

 

Appeal from an order of the Family Court of Otsego County (Nydam, J.), entered November 19, 1993, which granted petitioner's application, in a proceeding pursuant to Family Court Act article 10, to adjudicate respondent's children to be abused and/or neglected.

 

In October 1992 petitioner commenced this proceeding to adjudicate respondent's children, Angelina, Joseph and Alice, to be abused and/or neglected. The investigation commenced by a hot-line report made by the children's mother. The report was made almost contemporaneously with respondent's acquisition  [*952]  of custody of the children pursuant to court order. Following a fact-finding hearing, Family Court found that respondent had sexually abused Angelina and made a derivative finding of neglect concerning Joseph and Alice.  [***2]  At the dispositional hearing, an order was entered placing the children in the custody of their mother for one year. Respondent appeals. Subsequently, Family Court entered a temporary order placing the children in the custody of respondent under the supervision of his wife.

 

There must be an affirmance. Contrary to respondent's contentions, we find that Family Court's determination that respondent had abused Angelina and had neglected Joseph and Alice was supported by a preponderance of the evidence (see, Family Ct Act § 1046 [b] [i]; Matter of Nicole V., 71 NY2d 112, 524 N.Y.S.2d 19, 518 N.E.2d 914). As to respondent's contentions that Family Court gave greater weight to the testimony of petitioner's witnesses than respondent's witnesses and ignored the Law Guardian's oral report, the determination of the Appellate Division regarding custody and the prior Law Guardian's written report, we note that it is axiomatic that great deference will be accorded to those factual findings made by Family Court which had direct observation of and access to the parties and the professionals who testified. We will not disturb those findings on appeal unless we find that they lack a [***3]  sound and substantial basis in the record (see, Matter of Daniel R. v Noel R., 195 AD2d 704, 706, 600 N.Y.S.2d 314). While the testimony of the children's mother was replete with inconsistencies, we find that there was sufficient evidence to support Family Court's determination.

 

We further find that the statements of Angelina were sufficiently corroborated (see, Family Ct Act § 1046 [a] [vi]; Matter of David DD. [Thomas DD.],     AD2d    , 611 NYS2d 936; Matter of Alena D., 125 AD2d 753, 509 N.Y.S.2d 175, lv denied 69 NY2d 605). Moreover, as respondent conceded at the fact-finding hearing that the child was sexually abused, identity of the perpetrator became a relevant issue. It is well settled that corroborative evidence as to the identity of an abuser is not required (Matter of Justina S. [Brian S. - Keith P., 180 AD2d 642). In any event, here, as in Matter of Justina S. (Brian S. - Keith P.) (supra), Angelina was consistent in her identification of respondent as the perpetrator.

 

Respondent further argues that there was insufficient evidence to support Family Court's determination that Joseph and Alice were neglected.  [***4]  It is well settled that the sexual abuse of one child, standing alone, does not establish a prima facie case of derivative neglect against the others ( Matter of Amanda LL. [David NN.], 195 AD2d 708). However, a respondent's conduct  [*953]  may be found to demonstrate such an impaired level of judgment as to create a substantial risk of harm for any child in his care and thereby support a derivative finding of neglect (id.). Here, the record reflects sufficient cause for such finding.

 

Respondent additionally contends that Family Court erred by refusing to permit the Law Guardian to testify as to the veracity of statements Angelina made at an in-camera interview during which the Law Guardian was present. As Angelina had an attorney-client relationship with her Law Guardian (see, Matter of Bentley v Bentley, 86 AD2d 926, 448 N.Y.S.2d 559) and since the record does not reflect any willingness on the part of the child to waive her privilege and permit her Law Guardian to testify or express an opinion concerning her veracity, we find that Family Court appropriately refused to permit the Law Guardian to testify  [**338]  (see, Matter of Karl S., 118 AD2d 1002,  [***5]  500 N.Y.S.2d 209).

 

Finally, respondent asserts that Family Court abused its discretion in releasing custody of the children to their mother. Family Court listened to extensive argument concerning its dispositional order and, in placing the children with their mother, ensured that respondent have access. Thereafter, the court modified its order and placed the children with respondent with his custody to be supervised by his wife. Since Family Court has modified the order appealed from and has granted respondent temporary custody of the children, we conclude that this portion of the appeal is moot (see, Matter of Hanington v Coveney, 62 NY2d 640, 476 N.Y.S.2d 114, 464 N.E.2d 482).

 

The order of Family Court is, therefore, affirmed in its entirety.

 

Cardona, P.J., Crew III, Casey and Yesawich Jr., JJ. concur.

 

ORDERED that the order is affirmed, without costs.


[*1]  Naomi C., Petitioner-Appellant, v Russell A., Respondent-Respondent.

 

 

2542

 

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

 

 

2008 NY Slip Op 981; 48 A.D.3d 203; 850 N.Y.S.2d 415 (1st Dep’t 2008)

 

 

 

[**203]   [***416]  Order, Family Court, New York County (Helen C. Sturm, J.), entered on or about August 9, 2007, which dismissed, without a hearing and without prejudice, the petition to modify an order of custody, unanimously affirmed, without costs.

 

 

 

Petitioner's contention that sufficient grounds exist to modify the parties' so-ordered stipulation is without merit; neither custody nor visitation should be changed without a hearing (see e.g. David W. v Julia W., 158 AD2d 1, 6, 557 NYS2d 314 [1990]; Matter of Fischbein v Fischbein, 55 AD2d 885, 391 NYS2d 6 [1977]). However, Family Court was not required to hold a hearing here because petitioner failed to make the necessary evidentiary showing (see David W., 158 AD2d at 7).

 

 

 

Although the court was warranted in dismissing the petition  [**204]  on its face, we point out that the questioning of the Law Guardian (now called Attorney for the Child) by the court is something that should not be repeated. With the parties present, the court asked the Law Guardian, on the record, to discuss the position of the 10-year-old child regarding how well the current custody arrangement was working. Although the court was correct to disallow the "cross-examination" of the Law Guardian by petitioner's counsel, the court should not consider the hearsay opinion of a child in determining the legal sufficiency of a pleading in the first place. Most importantly, such colloquy makes the Law Guardian an unsworn witness, a position in which no attorney should be placed. "The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to . . . becoming a witness in the litigation" (Rules of the Chief Judge [22 NYCRR] § 7.2[b]).  [*2] 

 

 

 

 

We have considered petitioner's remaining arguments and find them unavailing.

 

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

 

ENTERED: FEBRUARY 5, 2008


In the Matter of LELA P. LADD, Respondent, v. ROSS BELLAVIA, JR., Appellant

 

[NO NUMBER IN ORIGINAL]

 

Supreme Court of New York, Appellate Division, Fourth Department

 

151 A.D.2d 1015; 542 N.Y.S.2d 81 (4th Dep’t 1989)

 

 [*1015]   [**81]  Order unanimously affirmed without costs. Memorandum: The determination of the Trial Judge that the award of custody to the mother is in the best interest of the child is entitled to the greatest respect (see, Eschbach v Eschbach, 56 NY2d 167, 173) and, on the record before us, we see no reason to disturb that determination. We reject respondent's contention that the conduct of the Law Guardian and the Trial Judge deprived him of a fair hearing.

 

We note with grave concern that the confidentiality of two in camera interviews with the child has been breached. The first transcript, of an interview on August 28, 1986, in connection with a temporary order, was inexplicably made available to the father's trial attorney, and was marked for identification at trial. The contents of this in camera interview were discussed at trial and the father's attorney sought unsuccessfully to use the child's words to contradict the mother's testimony. The transcript itself was not received in evidence and was improperly included with the trial exhibits furnished to us.

 

The second in camera [***2]  interview was sought during trial by the father's attorney. The Law Guardian indicated that the child had expressed reluctance to be interviewed. The mother's attorney requested that, if an interview occurred, it be done in the presence of the child and his attorney alone and that the transcript be sealed pending appeal. The court agreed that, of course, this would be done and the Law [**82]  Guardian opined that this was required by Matter of Lincoln v Lincoln (24 NY2d 270).

 

An in camera hearing did take place and the child was  [*1016]  assured that nobody would know what he said unless he told them. Nevertheless, the three attorneys stipulated to the table of contents of the record. The table of contents listed the second in camera interview and it is included as part of the trial transcript.

 

The Court of Appeals held 20 years ago that a court deciding custody of a child had the right to consider a confidential interview with the child conducted without the parents' consent because its first responsibility is and must be the welfare of the child. It emphasized the importance to the child of protecting it from having to choose openly between parents or to relate difficulties [***3]  with them ( Matter of Lincoln v Lincoln, supra, at 272). This principle is still true today and the child's right to confidentiality has been violated irreparably in this case. The transcript of an in camera interview with a child should be sealed and made available only to an appellate court unless the trial court in its discretion directs otherwise.

 

Present -- Doerr, J.P., Denman, Boomer, Green and Pine, JJ.


[*1]  In the Matter of Natasha Graham, Respondent, v Todd Graham, Appellant.

 

97165

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

 

2005 NY Slip Op 9781; 24 A.D.3d 1051; 806 N.Y.S.2d 755 (3d Dep’t 2005)

 [**1052]   [***756]  Spain, J. Appeal from an order of the Family Court of Schoharie County (Bartlett, III, J.), entered December 17, 2004, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

 

Petitioner and respondent, now divorced, are the parents of a daughter born in 1995. The custody arrangement between the parties was first established in California where the parties then resided and, after petitioner moved to Washington, D.C. and respondent moved to New York, was continued early in 2004--after a trial--by order of Family Court, Schoharie County. By that order, the child resided  [***757]  with respondent during the school year with petitioner having primary access during the summer, various holidays and each of the three-day holiday weekends during the school year. In July 2004, petitioner commenced this proceeding seeking to modify that custody arrangement, alleging a change in circumstances in the form of, among other things, respondent's alleged increased alcohol abuse. Following a Family Ct Act § 1034 investigation, a new fact-finding hearing and a Lincoln hearing, Family Court granted the petition and awarded joint legal custody to both parties, but with primary physical custody to petitioner and the three-day school year weekends, summer and holiday access to respondent. On respondent's appeal, we now affirm.

 

 [*2]  As the proponent for a change in an existing custody arrangement, it was petitioner's burden to make "a showing of changed circumstances demonstrating a real need for a change to ensure the child's best interest" (Matter of Oddy v Oddy, 296 AD2d 616, 617, 745 NYS2d 584 [2002]). In evaluating the existence of changed circumstances, "[d]eference is accorded Family Court's determination because it is in the best position to evaluate the credibility of the parties, and its findings will be disturbed only if unsupported by a sound and substantial basis in the record" (Matter of Yizar v Sawyer, 299 AD2d 767, 768, 751 NYS2d 117 [2002]).

 

Here, our review of the record reveals such competing facts and divergent testimony that we are unable to conclude that Family Court's determination lacks evidentiary support. The difficultly in making a choice between the conflicting positions argued in this case is reflected by the great reluctance with which the Law Guardian advocated for a change in custody (see [**1053]  id. at 768). Respondent is obviously a loving father who has demonstrated a willingness to cooperate with court-ordered assessments and restrictions in order to retain custody. He has, however, according to record evidence, also exhibited sufficiently irresponsible behavior during the relevant period to support the determination of Family Court. Specifically, on at least four occasions, respondent had become intoxicated to the point of becoming incapacitated. Although on these occasions others were present to care for the physical well-being of the child, these instances nevertheless negatively impacted the child in that she was, on at least two occasions, placed in the position of attempting to revive or care for her inebriated father. Further, at the time the petition was filed, respondent's live-in girlfriend, who had shared the responsibility of parenting the child, had moved back to California, as did--soon thereafter--respondent's father and his wife, who had lent additional support to respondent, leaving respondent without any local extended family to rely on for assistance.

 

On the other hand, although petitioner has also exhibited unacceptable behavior in allowing her animosity toward respondent to interfere with her responsibility to her child, as evidenced, for example, by her resistance to paying child support, she offers a greater degree of continuity and stability to the child. Moreover, no allegations have been made that her home is unsafe or that her behavior--to this point--has negatively impacted the child. We view the record evidence, taken as a whole, to be sufficient to support Family Court's conclusion that a change in circumstances existed and that it was in the child's best interest to modify the existing custody arrangement (see Matter of Hrusovsky v Benjamin, 274 AD2d 674, 676, 710 NYS2d 198 [2000]; Matter of Caccavale v Brown, 271 AD2d 717, 719, 705  [***758]  NYS2d 139 [2000]; Matter of Weeden v Weeden, 256 AD2d 831, 832-833, 681 NYS2d 671 [1998], lv denied 93 NY2d 804, 711 NE2d 202, 689 NYS2d 17 [1999]; cf. Matter of Banks v Hairston, 6 AD3d 886, 887, 775 NYS2d 124 [2004]).

 

It was, however, improper for Family Court to direct the child's attorney, the Law Guardian, to file a "report" in this case (see Weiglhofer v Weiglhofer, 1 AD3d 786, 788 n, 766 NYS2d 727 [2003]). Notably, the Law Guardian was careful to characterize his written submission at the end of the proof as his "summation" and appropriately relied solely on record evidence in support of his position. Family Court, however, not only referred to the "summation" as a "report" but, in lieu of making independent findings, adopted--in its own decision--the Law Guardian's submission in its entirety. The Law Guardian also made "recommendations" in his submission; evidence that he, as well as Family Court, may have misunderstood his role.

 

 [**1054]  The use by a court of the "recommendation of the Law Guardian" has too long been tolerated in Family Court and matrimonial proceedings. When a court asks the child's attorney to make "a recommendation," it improperly elevates the Law Guardian's position to something more  [*3]  important to the court than the positions of the attorneys for each of the parents. Attorneys representing parents do not advocate on behalf of their clients by making "reports" and "recommendations." The Law Guardian should take a position on behalf of the child at the completion of a proceeding--whether orally, on the record, or in writing (see id. at 788 n)--and that position must be supported by evidence in the record.

 

The findings and conclusions that we have made in this case are based upon our search of the record with due deference to Family Court's credibility assessments. We have not given the Law Guardian's summation greater weight than the arguments and positions of the attorneys for the parents and we have treated the "recommendations" of the Law Guardian more properly as the position of the attorney representing the child.

 

We have considered respondent's remaining contentions and find them to be without merit.

 

Mercure, J.P., Carpinello, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.


In the Matter of James J. Cobb, Respondent, v. Kathy Cobb, Appellant.

 

CAF 02-02396

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

 

4 A.D.3d 747; 771 N.Y.S.2d 476 (4th Dep’t 2004)

 [*747]   [**476]  Appeal from an order of the Family Court, Oneida County (Frank S. Cook, J.), entered September 27, 2002. The order found respondent in contempt of court for willfully violating an order mandating that respondent and the parties' child obtain counseling.

 

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

 

Memorandum: We conclude that Family Court properly found respondent in contempt of court. The record establishes that respondent was aware of an order mandating that she and the parties' child obtain counseling and that she willfully violated that order (see Matter of Hicks v Russi, 254 A.D.2d 801, 678 N.Y.S.2d 203 [1998]). We note, however, that the court improperly directed the Law Guardian to prepare and file a "law guardian report" with the court ex parte, inasmuch as a law guardian "is the attorney for the children . . . and not an investigative arm of the court"  [***2]  (Weiglhofer v Weiglhofer, 1 A.D.3d 786, 788 n 1, 766 N.Y.S2d 727 [2003]; see Matter of Rueckert v Reilly, 282 A.D.2d 608, 609, 723 N.Y.S.2d 232 [2001]). Indeed, a law guardian should not submit any pretrial report to the court or engage in any ex parte communication with the court (see NY State Bar Assn Commn. on Children and the Law, Law Guardian Representation Standards, vol 2, Standards B-6, B-7 [Nov. 1999]). Moreover, the court improperly directed the Law Guardian to testify as a witness. The Law Guardian's testimony on behalf of petitioner in this case appears to have been in direct contravention of Code of Professional Responsibility DR 5-102 (c) (22 NYCRR 1200.21 [c]), which provides that "[i]f, after [*748]  undertaking employment in contemplated or pending litigation, a lawyer learns or it is obvious that the lawyer ought to be called as a witness on a significant issue on behalf of the client, the lawyer shall not serve as an advocate on issues of fact before the tribunal . . . ."

 

Present--Pigott, Jr., P.J., Hurlbutt, Scudder, Kehoe and Gorski, JJ.


In the Matter of Dominique A.W. and Others, Infants. Monroe County Department of Human and Health Services, Respondent; Colleen C.-G., Appellant.

 

CAF 04-01525

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

 

17 A.D.3d 1038; 794 N.Y.S.2d 195 (4th Dep’t 2005)

 

 [*1038]  [**195] Appeal from an order of the Family Court, Monroe County (Marilyn L. O'Connor, J.), entered May 27, 2004 in a proceeding pursuant to Social Services Law § 384-b. The order terminated respondent's parental rights, committed guardianship and custody of the children to petitioner and authorized petitioner to consent to the adoption of the children.

 

It is hereby ordered that the order so appealed from be and  [*1039]  the same hereby is unanimously modified on the law by vacating those parts of the first three ordering paragraphs with respect to Dominique A.W. and as modified the order is affirmed [***2]  without costs and the matter is remitted to Family Court, Monroe County, for further proceedings in accordance with the following Memorandum: Respondent mother appeals from an order of disposition that, upon a finding of permanent neglect, terminated her parental rights with respect to five of her children, committed their guardianship and custody to petitioner, and freed them for adoption. Contrary to the contention of respondent, Family Court did not abuse its discretion in terminating her parental rights with respect to her four younger children and freeing those children for adoption rather than entering a suspended  [**196]  judgment with respect to those children (see Matter of Philip D., 266 AD2d 909, 698 NYS2d 139 [1999]; see also Matter of Stephen S., 12 AD3d 1181, 1182, 785 NYS2d 266 [2004]; Matter of Susan C., 1 AD3d 991, 767 NYS2d 346 [2003]). "The court's focus at the dispositional hearing is the best interests of the child[ren] … [and] the court's assessment that respondent was not likely to change [her] behavior is entitled to great deference" (Philip D., 266 AD2d at 909). In addition, the record establishes that the respective foster mothers of those children wish to [***3]  adopt them (see id.). Thus, petitioner established that it is in the best interests of those children to be freed for adoption (see id.; see also Family Ct Act § 631; Matter of Jason J., 283 AD2d 982, 723 NYS2d 922 [2001]).

 

We agree with respondent, however, that on the record before us the court abused its discretion in terminating respondent's parental rights with respect to the oldest child, Dominique. A separate termination proceeding was commenced against Dominique's father and, according to the record, he lives in another part of the country and stated that he wished to surrender his parental rights. Dominique is now 17 years old and is residing in a residential facility. At the time of the dispositional hearing, there was no prospective adoptive home for Dominique and petitioner was in the process of developing an independent living plan for her.

 

One law guardian represented all five children and, while he spoke favorably with respect to the prospective adoptive mothers of the four younger children, he failed to address Dominique's situation. Indeed, at oral argument of this appeal the law guardian acknowledged that he had never met [***4]  Dominique and opined that she was at least 16 years of age. He understood that she was then "AWOL" from a residential facility. Such a possibility is not mentioned in the record.

 

The Guidelines for Law Guardians in the Fourth Department  [*1040]  issued in 1987 by the Departmental Advisory Committee of the Fourth Department Law Guardian Program provide in relevant part with respect to permanent neglect proceedings that, before an initial appearance on behalf of a child over age three, the law guardian should arrange to visit and interview the child in an age-appropriate manner to ascertain facts concerning, inter alia, the child's wishes and needs. After the fact-finding hearing, the child should be consulted and apprised of the specific dispositional plans proposed. At the dispositional hearing, the law guardian should, inter alia, present and advocate a specific dispositional plan to the court and inform the court of the child's wishes. None of those services was provided to Dominique.

 

The New York State Bar Association's Committee on Children and the Law has also promulgated Law Guardian Representation Standards with respect to, inter alia, proceedings for the termination [***5]  of parental rights. Standard A-4 of part IV provides that the law guardian should interview the child to ascertain detailed facts and the child's wishes concerning placement and adoption. Standard A-5 of part IV provides that the child "should be advised, in terms the child can understand, of the nature of the proceeding, the child's rights, the parents' rights, the role and responsibility of the agency, the court, the foster parents and the law guardian, the attorney-client privilege and the possible dispositional alternatives available to the court." Standard D-1 of part IV provides that the law guardian "should present and advocate a specific dispositional plan to the court and apprise the court of the child's wishes." Finally, Standard E-1 of part IV provides that the law guardian should  [**197]  explain to the child "the disposition and its consequences, the rights and possibilities and post-disposition motions and hearings and the responsibilities of each of the parties." None of the above standards has been met, and we note that in fact the court seemed confused about the plan for Dominique.

 

The termination of respondent's parental rights with respect to Dominique will result [***6]  in " 'legal orphanage' " (Matter of Amber AA., 301 AD2d 694, 697, 754 NYS2d 387 [2003]) and we conclude that, despite the failure of respondent to address the specific problem that led to Dominique's removal, the termination of respondent's parental rights with respect to Dominique may not be in Dominque's best interests (see id. at 697-698; Matter of Michael E., 241 AD2d 635, 638, 659 NYS2d 578 [1997]). We therefore modify the order by vacating those parts terminating respondent's parental rights with respect to Dominique, committing her guardianship and custody to petitioner and freeing her for adoption, and we remit the matter to Family Court for appointment of a different law  [*1041]  guardian and a new dispositional hearing. Present--Pigott, Jr., P.J., Hurlbutt, Martoche, Smith and Pine, JJ.


Iolanta Campolongo, Plaintiff, v. Sergio Campolongo, Appellant. Irwin Weisberg, Nonparty Respondent. (Index No. 2130/00)

 

2003-00625

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

 

2 A.D.3d 476; 768 N.Y.S.2d 498 (2d Dep’t 2003)

                                                                                                         

[*476]   [**499]  In a matrimonial action in which the parties were divorced by a judgment dated November 16, 2001, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Fitzmaurice, J.), dated September 19, 2002, as granted those branches of the Law Guardian's motion which were to disqualify the defendant's attorney and preclude the defendant from using a psychiatrist's report and testimony as evidence in the pending custody dispute.

 

Ordered that the order is affirmed insofar as appealed from, with costs.

 

It is well settled that the disqualification of an attorney is a matter which rests within the sound discretion of the court (see Olmoz v Town of Fishkill, 258 A.D.2d 447, 684 N.Y.S.2d 611 [1999]; Fischer v Deitsch, 168 A.D.2d 599, 563 N.Y.S.2d 836, 563 N.Y.S.2d 839 [1990]). A party's entitlement to be represented in ongoing [***2]  litigation by counsel of his or her own choosing is a valued right which should not be abridged absent a clear showing that disqualification is warranted (see Olmoz v Town of Fishkill, supra), and the movant bears the burden on the motion (see Tekni-Plex, Inc. v Meyner & Landis, 89 N.Y.2d 123, 131, 674 N.E.2d 663, 651 N.Y.S.2d 954 [1996]; Solow v Grace & Co., 83 N.Y.2d 303, 308, 632 N.E.2d 437, 610 N.Y.S.2d 128 [1994]; S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 N.Y.2d 437, 445, 508 N.E.2d 647, 515 N.Y.S.2d 735 [1987]).

 

Here, the defendant's attorney violated Code of Professional Responsibility DR 7- 104 (A) (1) (see 22 NYCRR 1200.35 [a] [1]) by allowing a psychiatrist, that he caused the defendant father to retain, to interview the subject child regarding the pending custody dispute and to prepare a report without the Law Guardian's knowledge and consent. The [**500]  appointment of a Law Guardian to protect the interests of a child creates an attorney-client relationship, and the absence of the Law Guardian at the subject interview constituted a denial of the child's due process rights (see Matter of Samuel H., 208 A.D.2d 746, 747, 618 N.Y.S.2d 42 [1994]; see  [*477]  also Family Ct Act § 241 [***3]  ). Further, while the Supreme Court previously appointed a psychologist to conduct a forensic examination of the child and the parties herein, the defendant's attorney failed to seek court permission for an additional forensic evaluation, and also failed to inform the attorney for the plaintiff of the interview by the defendant's psychiatrist.

 

Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting those branches of the Law Guardian's motion which were to disqualify the defendant's attorney and to preclude him from using the psychiatrist's report and testimony as evidence in the pending custody dispute.

 

Friedmann, J.P., H. Miller, Townes and Cozier, JJ., concur.


Catherine Bluntt, an Infant, by Her Parent and Guardian, Michelle Bluntt, et al., Appellants-Respondents, v. Elizabeth O'Connor, Respondent-Appellant.

 

1675, CA 01-01062

 

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

 

291 A.D.2d 106; 737 N.Y.S.2d 471 (4th Dep’t 2002)

 

[*107]   [**472]  Pine, J. P.

 

This case raises the issues, not previously considered by an appellate court in this State, whether a parent may on his or  [*108]  her own behalf and on behalf of his or her child sue a court-appointed Law Guardian for legal malpractice and, if so, what legal standard should apply in evaluating the Law Guardian's representation. We conclude for the reasons that follow that plaintiff mother (hereafter plaintiff) in this case lacks standing to bring such an action either individually or on behalf of plaintiff child and therefore conclude that the order of Supreme Court dismissing the complaint should be affirmed on that ground. Were we to reach the merits, we would  [**473]  conclude that the Law Guardian in the circumstances of this [***2]  case owes no duty to plaintiff individually and has absolute quasi-judicial immunity in an action commenced on behalf of the child.

 

I

 

FACTS

 

The child was born on December 12, 1996. The father, who was never married to plaintiff and apparently never lived with her, brought a paternity proceeding on February 12, 1997, and it is undisputed that paternity was established. He filed a Family Court petition seeking visitation that was followed by an order of Judge Rosa dated June 13, 1997 appointing defendant Law Guardian for the child and by an order dated July 10, 1997 permitting visitation in accordance with a stipulation of the parties placed on the record by the Law Guardian.

 

By another petition dated October 17, 1997, the father alleged that plaintiff had denied him visitation on three occasions without just cause. On October 22, 1997, the court again appointed defendant the child's Law Guardian and the parties appeared in court on November 7, 1997; both parents had new counsel. The court noted on the record that, despite being represented, plaintiff sent the court an extensive letter containing, inter alia, criticism of defendant for failing to bring forward certain [***3]  of plaintiff's concerns. Although no motion was made at that time to replace defendant as Law Guardian, the court stated that plaintiff's complaints concerning defendant would not warrant such action. Plaintiff's concerns not brought forward by defendant included alleged exposure of the child to cigarette smoke, the need for a proper car seat, the need to avoid exposing the child to animals because of potential allergy problems, and the presence of a suicidal, and possibly homicidal, relative in the father's home. The father's attorney stated in response that the father does not smoke in the presence of the child, had purchased a new car seat and has no pets.

 

 [*109]  Because of the serious nature of some of the allegations and the difference in the parents' versions of the facts, defendant requested the appointment of a psychologist to evaluate the situation and make a recommendation in the best interests of the child, inasmuch as the child should visit her father if it was safe for her to do so. The court appointed a psychologist over plaintiff's objection. Visitation was continued and the matter was adjourned.

 

By order to show cause in January 1998 plaintiff sought [***4]  suspension of the father's visitation. That motion was denied without prejudice on February 2, 1998, and a hearing on the father's violation petition was set for March 19, 1998. On February 24, 1998, plaintiff filed a modification petition seeking supervised smoke-free visitation. That same day, the father filed a cross petition alleging further violations of the visitation order by plaintiff.

 

The record contains the decision portion of that hearing, dated June 8, 1998, as well as a few pages of the testimony taken in March and April 1998. It is apparent that the court heard testimony from Dr. Mark Schachter, the court-appointed psychologist; both parents; the child's paternal grandmother; a half-sister of the father who is also plaintiff's friend; and Dr. K. Michael Cummings, chairman of the Department of Cancer Control and Epidemiology at Roswell Park Institute. The court found that the evidence presented by Dr. Cummings concerning the effects of smoke on young children was uncontroverted but irrelevant because he was unable to state whether smoke that might linger on hair and clothing would subsequently  [**474]  have an adverse effect upon a person.

 

Most significantly,  [***5]  Dr. Cummings did not testify whether the child was in fact placed in an environment with cigarette smoke during visitation, which was the issue in controversy. The court found that the child was not placed in such an environment, declining to credit the testimony of plaintiff's friend but accepting the testimony of Dr. Schachter that, while the fears of plaintiff about improper car seats or second-hand smoke may in fact be reasonable ones, her reactions "in fact have been far outside the actual facts." The court stated that Dr. Schachter "could not find support medically [for] any of [plaintiff's] allegations and his assessment found there was no reason to restrict the father in his visitation." The court found the child's paternal grandmother "intelligent and sincere and restrained in her testimony" and plaintiff's reaction to the paternal grandmother inappropriate. It further found the father's  [*110]  testimony credible and reasonable and stated that the father has acted "in a restrained and gentlemanly fashion in the face of what have been, at times, very vigorous and in fact what the court will find as outrageous and baseless allegations." The court detailed the efforts [***6]  of the father in providing "new carpeting, furniture, paint, [and] a relatively new furnace" and referred to evidence that inasmuch as he had an asthmatic person living in his home, he had taken great steps to create a proper environment for the child, who appears to have a tendency toward asthma. The court found that plaintiff has resisted the father's efforts to be in contact with the child almost "every single step of the way" and credited the testimony of the father that he had lost contact with plaintiff before the birth of their child and that she had failed to advise him of her hospital stay.

 

The court further found that plaintiff "has been bordering on a pathological obsession with this child. … Her appearance, her demeanor, [and] her testimony, confirm[] Dr. Schachter's assessment that she is rigid and unrealistic [and] that she clings to some inappropriate judgments … that she makes in the face of all other countervailing evidence to the contrary."

 

The court noted that, whenever plaintiff has received an assessment or a comment from Dr. Schachter or defendant that she finds inconsistent with her version of events, i.e., "when they will not advocate her [***7]  position, she becomes vigorous in fighting them. Her obvious rancor and hostility towards those individuals as well as the father were evident throughout the entirety of these court proceedings." The court anticipated that it too would be on the list of those vigorously opposed by plaintiff. The court stated, "She clearly, on several occasions, emphatically admitted that all of this child's illnesses are based on the father's contact and that is completely belied by the hospital record she had subpoenaed and brought into the Court. The Court finds in fact this child was seen by her physician as stated on May 1997 for an obvious congestion and cough and yet [plaintiff] maintains that never occurred."

 

The court denied plaintiff's modification petition, finding no reason to have supervised visitation, and granted the father's violation petition. The court stated that it would have expanded visitation for the then 18-month-old child if the father had sought it. The court also forbade both parents from taping conversations between them, including telephone conversations, or from videotaping the child before or after visitation.

 

A notice of appeal from that order was filed by [***8]  plaintiff and an application for a  [**475]  stay pending appeal and a renewed application  [*111]  for a stay were made. Those applications were both denied and the appeal was never perfected.

 

On January 5, 1999, plaintiff filed a complaint in the United States District Court for the Western District of New York seeking an injunction against Judge Rosa based on her having directed the parties not to videotape the child. Plaintiff alleged that Judge Rosa was biased against her, an African-American, in favor of the father, who had a Caucasian parent, and that there was no rational basis for Judge Rosa's rejection of her evidence, which was far more credible. District Court sua sponte dismissed that complaint 10 days later.

 

In the meantime, on January 7, 1999, the father filed another violation petition. That same day, the court reappointed defendant Law Guardian, for the third time. On February 12, 1999, plaintiff, represented by a third attorney, moved to have Judge Rosa recuse herself. That motion was denied on February 22, 1999. The record contains a letter from defendant to plaintiff's attorney dated April 16, 1999 declining plaintiff's request that defendant withdraw [***9]  as Law Guardian, but no motion for substitution of the Law Guardian appears in the record.

 

On April 30, 1999, plaintiff commenced a CPLR article 78 proceeding in Supreme Court against Judge Rosa, alleging that the Judge had demonstrated neglect for the child's safety by permitting visitation with the father and seeking an order requiring Judge Rosa to disqualify herself from any proceeding in which plaintiff or the child was a party. That proceeding was dismissed on May 13, 1999.

 

By yet another attorney, plaintiff commenced the instant action against defendant in Supreme Court on May 24, 1999, alleging seven causes of action in a verified complaint: (1) that defendant breached her duty of sole, exclusive and zealous representation of the child; (2) that defendant failed and refused to conduct a full and complete investigation of the conditions of the child's legally mandated visitation with the father and permitted the child to be endangered by conditions in his household; (3) that defendant, when advised that the child was being fed unsuitable food in the father's household, breached her duty to the child by allowing, permitting and facilitating the child's exposure to unsuitable [***10]  food; (4) that defendant breached her duty to the child by becoming a second advocate for the father and by misrepresenting to Family Court the impact of conditions in the father's home; (5) that defendant breached her duties as a fiduciary and an attorney for the child by failing and refusing to protect the child's health, advocating  [*112]  a view of the facts belied by current scientific knowledge, failing to consult adequately with plaintiff and the child's maternal grandmother, failing to visit the child's home, and allowing herself to be co-opted by the father in violation of specified disciplinary rules; (6) that defendant's conduct resulted in loss of services on behalf of plaintiff; and (7) that defendant failed and refused to exercise her roles as Law Guardian and attorney in a proper manner due to racial bias and/or animus.

 

An answer denying most of the allegations and setting forth as an affirmative defense that the complaint alleges a frivolous claim and that defendant is entitled to costs and attorneys' fees was interposed on June 23, 1999.

 

In October 1999 the father's pending Family Court violation petition was reassigned and the Law Guardian serving in the new [***11]  Family Court Judge's Part under a pilot program replaced defendant as the child's Law Guardian.

 

 [**476]  On April 14, 2000, defendant moved to dismiss the instant complaint on the ground that there was a "need to protect the exercise of discretion on behalf of all Law Guardians." She asserted, inter alia, that plaintiff lacks standing to sue on behalf of the child because plaintiff has interests adverse to those of the child in the underlying action; that the Family Court Judge could accept or reject the views of the Law Guardian; and that review of a Family Court order is properly by appeal to the Appellate Division. She sought sanctions on the ground that the action is frivolous. Plaintiffs opposed the motion to dismiss, asserting that defendant cannot "clothe herself as the protector of the office of law guardian" inasmuch as the Attorney General had declined her request for representation. Plaintiffs further asserted that defendant is potentially liable in money damages "in the same sense that any court-appointed attorney may be liable for malpractice." Plaintiffs asserted that in the underlying case defendant was acting as a Law Guardian, not a guardian ad litem, and was [***12]  not entitled to the more lenient standard for guardians ad litem set forth in Marquez v Presbyterian Hosp. in City of N.Y. (159 Misc 2d 617).

 

The motion was argued extensively before Justice Joslin in Supreme Court on June 21, 2000. Defendant proffered affidavits, which, the court noted, would be appropriate on a motion for summary judgment. Plaintiffs sought denial of the motion to dismiss and discovery from defendant to enable them to determine whether defendant was acting as a Law Guardian or a guardian ad litem for purposes of applying Marquez v Presbyterian Hosp. in City of N.Y. (supra). The court converted  [*113]  the motion to one for summary judgment, permitted amended pleadings, and declined to address plaintiffs' discovery request at that time.

 

The converted summary judgment motion was argued extensively on December 20, 2000. The court queried plaintiffs' counsel about standing, asking why the child's claim was not being brought by a disinterested person. Plaintiffs' attorney maintained that many factual issues had been raised and asserted that, "in the face of evidence to the contrary, [defendant] took the position that [***13]  her client's health and well being was not damaged by her association with the noncustodial parent." Defendant argued that the pleadings fail to state a cause of action. Ultimately, the court orally granted the converted summary judgment motion, dismissing the complaint with prejudice without costs.

 

This appeal ensued.

 

II

 

STANDING

 

Plaintiffs contend on appeal that plaintiff has standing to bring a claim on behalf of the child pursuant to CPLR 1201. The court did not explicitly rule on the argument made by defendant in her motion to dismiss that plaintiff cannot bring an action on behalf of the child against the Law Guardian because plaintiff and the Law Guardian are adverse parties. The court should have granted the motion on that ground.

 

Under most conditions, CPLR 1201 allows a parent to serve as a child's guardian in an action. "Unless the court appoints a guardian ad litem, an infant shall appear by … a parent having legal custody [***14]  …. A person shall appear by his guardian ad litem if … the court so directs because of a conflict of interest or for other cause" (CPLR 1201). In the instant case, Supreme Court noted that the action was brought by the infant  [**477]  through one of the parties, who had her own adversarial interest in the action.

 

Although in enacting CPLR 1201 "the Legislature demonstrated a preference for natural guardians" (Stahl v Rhee, 220 AD2d 39, 44; see, Matter of Palmiere, 284 AD2d 965, lv denied 97 NY2d 601), "[a] parent may be removed as natural guardian if he or she has an interest adverse to the infant …, or if the infant's natural guardians have irreconcilable differences with each other" (Stahl v Rhee, supra at 44; see also, Caban v 600 E. 21st St. Co., 200 FRD 176, 181 [ED NY 2001]). At the  [*114]  time the complaint in the instant action was filed, plaintiff was still in litigation with the father, attempting to suspend visitation with him [***15]  because of alleged second-hand smoke. She clearly had an interest in disputing defendant's opinion, which supported visitation with the father, and she had an interest adverse to the child's interest in maintaining a relationship with both parents. Here, defendant's duty was to the child, not to either parent.

 

If plaintiff's objection to defendant's independent judgment was not apparent on the face of the pleadings, it has been overwhelmingly shown by the additional submissions after the motion was converted to one for summary judgment. A child is entitled to a relationship with both parents unless it is shown to be contrary to the child's best interests (see, Braiman v Braiman, 44 NY2d 584, 589). Given the history set forth above, there is no question of fact whether plaintiff obstructed the relationship of the child with the father. Family Court's order of June 8, 1998 was based on testimony of the court-appointed psychologist, medical records, and testimony of the parties and other witnesses whose credibility the court evaluated. Plaintiff's animus toward the court [***16]  and defendant is incontrovertible. The issue whether plaintiff may bring this action on behalf of the child is more properly framed in terms of whether plaintiff has a conflict with the child, in view of the fact that ordinarily it is in a child's best interests to have a relationship with the noncustodial parent, and one of the duties of the Law Guardian is to attempt to foster that relationship if the relationship is not contrary to the child's best interests. Plaintiff failed to establish at the hearing in Family Court that the relationship with the father was harmful, but that remains her fixed view. Thus, plaintiff cannot act as guardian for the child in this action.

 

Nor does plaintiff have standing to bring the action individually because she is a third party who was not in privity with the Law Guardian. In New York, " 'absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence' " (Conti v Polizzotto, 243 AD2d 672, quoting Estate of Spivey v Pulley, 138 AD2d 563, 564). [***17]  Although the privity requirement has been relaxed to a limited extent to allow recovery in malpractice actions against accountants or other professionals (see, Viscardi v Lerner, 125 AD2d 662, 664), New York courts otherwise have adhered to the requirement unless there is a showing of a "relationship so close as to approach  [*115]  that of privity" (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382, rearg denied 81 NY2d 955; see, Andrewski v Devine, 280 AD2d 992, 992-993 [finding that mother cannot sue her own attorney  [**478]  for malpractice on behalf of her children because no attorney-client relationship exists between the children and the attorney representing the mother]). Therefore, plaintiff lacks standing to bring this malpractice action against defendant, either on behalf of the child or individually.

 

III

 

MERITS

 

The sole reported decision in New York on the appropriate legal standard for evaluating a Law Guardian's representation is Marquez v Presbyterian Hosp. in City of N.Y. (159 Misc 2d 617, supra). That case involved legal [***18]  malpractice claims by the parents charged with sexual abuse of their child against the child's Law Guardians, brought by the parents individually and on behalf of the child. Justice Friedman in a thoughtful opinion distinguished the roles of Law Guardians as advocates and as guardians and concluded that in most cases Law Guardians act as advocates. He noted, however, that for very young children the function of a Law Guardian may differ little from that of a guardian ad litem, quoting Matter of Scott L. v Bruce N. (134 Misc 2d 240, 243; see, Marquez v Presbyterian Hosp. in City of N.Y., supra at 624). Justice Friedman noted that the Court of Appeals in Braiman v Braiman (supra at 591) suggested appointment of a guardian ad litem to assist the Court in resolving a difficult custody issue involving children who were six and seven years old (see, Marquez v Presbyterian Hosp. in City of N.Y., supra at 624).

 

Justice Friedman concluded that, while the ordinary standard for legal malpractice might be the appropriate standard for a Law Guardian acting as an advocate, a different standard should apply where the Law [***19]  Guardian is acting as a guardian ad litem so that the Law Guardian may exercise truly independent judgment. He concluded that the appropriate standard in that situation is whether the Law Guardian failed to act in good faith in exercising discretion or failed to exercise any discretion at all.

 

Although not addressed by the parties, we deem it appropriate to consider the law in sister states in analyzing the appropriate legal standard for evaluating the conduct of a Law  [*116]  Guardian in a custody or visitation dispute involving a child under three years of age. Were we to reach the merits of this appeal, we would find persuasive the analysis of other courts that the Law Guardian on these facts has absolute quasi-judicial immunity for acts within the scope of her appointment.

 

Most courts that have considered suits by disgruntled parents against attorneys appointed by courts to protect children in custody disputes have granted, on public policy grounds, absolute quasi-judicial immunity to the attorneys for actions taken within the scope of their appointments (see, Cok v Cosentino, 876 F2d 1, 3; Myers v Morris, 810 F2d 1437, 1466, cert denied [***20]  484 US 828; Kurzawa v Mueller, 732 F2d 1456, 1458; Perigo v Wiseman, 11 P3d 217, 217-218 [Okla]; Paige K. B. v Molepske, 219 Wis 2d 418, 427, 580 NW2d 289, 293; Billups v Scott, 253 Neb 287, 293, 571 NW2d 603, 607; West v Osborne, 108 Wash App 764, 774, 34 P3d 816, 822; Winchester v Little, 996 SW2d 818, 827 [Tenn], cert denied 528 US 1026; Delcourt v Silverman, 919 SW2d 777, 786 [Tex], cert denied 520 US 1213, reh denied 520 US 1283; State ex rel. Bird v Weinstock, 864 SW2d 376, 377-378 [Mo]; Leary v  [**479]  Leary, 97 Md App 26, 40, 627 A2d 30, 36; Penn v McMonagle, 60 Ohio App 3d 149, 152, 573 NE2d 1234, 1237, jurisdictional mot overruled 58 Ohio St 3d 704, 569 NE2d 512; Delbridge v Office of Pub. Defender, 238 NJ Super 288, 299-300, 569 A2d 854, 860, affd sub nom. A.D. v Franco, 297 NJ Super 1, 687 A2d 748, certification denied 135 NJ 467, 640 A2d 849, cert denied  [***21]  sub nom. Delbridge v Franco, 513 US 832; cf., Fleming v Asbill, 42 F3d 886, 890).

 

A foundation for many of those decisions is the holding by the United States Supreme Court that "the common law provided absolute immunity from subsequent damages liability for all persons--governmental or otherwise--who were integral parts of the judicial process" (Briscoe v LaHue, 460 US 325, 335). Most of the cases that have held court-appointed representatives of children in custody disputes to be integral parts of the judicial process have concerned attorneys appointed as guardians ad litem rather than as Law Guardians, but in New York the attorneys customarily are appointed as Law Guardians (see, Family Ct Act §§ 241, 249; cf., CPLR 1201, 1202). In determining whether immunity is appropriate, courts have analyzed the function performed by the representative to ascertain whether the representative is primarily an aid to the court in determining the best interests of the child or an advocate for the child in articulating the child's wishes (see,  [*117]  e.g., Paige K. B. v Molepske, supra, 219 Wis 2d, at 427-428, 580 NW2d, at 293; [***22]  Leary v Leary, supra, 97 Md App, at 40-41, 627 A2d, at 36-37). The line is not always easily drawn, and attorneys involved may be unclear about their roles. A study reported in the Yale Law Journal indicates widespread differences in the views of 18 court-appointed attorneys in custody cases concerning their function therein and discrepancies between their stated understanding of their function and their actions (see, Note, Lawyering for the Child: Principles of Representation in Custody and Visitation Disputes Arising from Divorce, 87 Yale LJ 1126, 1142-1153). Whatever label is used, it is clear in this case that the Law Guardian could not be acting as an advocate for the child in articulating the child's wishes because defendant's last appointment terminated when the child was less than three years old. Necessarily, defendant was appointed to use her skill and judgment to aid the court in deciding what visitation was in the child's best interests.

 

The Supreme Court of Wisconsin has stated that, for a guardian ad litem (GAL) to perform his or her duties in a proper manner, the GAL

 

"must be allowed to independently consider the facts of [***23]  a case and advocate the best interests of the child, free from the threat of harassment for retaliatory litigation. Opening the door to negligence liability for GALs appointed under Wis. Stat. § 767.045 would likely result in a decline in the number of attorneys willing to serve as GALs in child custody proceedings. In addition, fear of liability could warp the judgment of those GALs who are appointed toward the appeasement of disappointed parents or children and away from protecting the best interests of the child" (Paige K. B. v Molepske, supra, 219 Wis 2d, at 433-434, 580 NW2d, at 296, citing Short v Short, 730 F Supp 1037, 1039; see, State ex rel. Bird v Weinstock, supra at 386).

 

The Supreme Court of Wisconsin continued that,

 

"without the assistance and impartial judgment of a GAL, the [trial] court would have no practical or effective means to assure itself that all of the essential facts have been presented untainted  [**480]  by the self-interest of the parents and children [see, State ex rel. Bird v Weinstock, supra at 384]. Absolute  [*118]  immunity is necessary [***24]  in this case to avoid the harassment and intimidation that could be brought to bear on GALs by those parents and children who may take issue with any or all of the GAL's actions or recommendations" (Paige K. B. v Molepske, supra, 219 Wis 2d, at 434, 580 NW2d, at 296; see, Tindell v Rogosheske, 428 NW2d 386 [Minn]).

 

That court further wrote:

 

"We therefore conclude that, from a public policy perspective, it is better to have a diligent, unbiased, and objective advocate to assist the court in determining and protecting the best interests of the child than it is to assure that the minor child may later recover damages in tort. We also note, as did the court of appeals, that a number of mechanisms, aside from civil liability, exist to prevent and punish abuse, misconduct, and irresponsibility on the part of a GAL appointed under Wis. Stat. § 767.045. First, the GAL must be an attorney admitted to practice in this state, … who is therefore bound by, and subject to reprimand for violating, the Rules of Professional Conduct. … Second, the court is not bound by, and may modify or reject, the GAL's recommendation. .  [***25]  .. Finally, and most importantly, the appointing court oversees the conduct of the GAL, and may on its own, or at the request of a parent, remove and replace the GAL. … In overseeing the conduct of a GAL, the [trial] court plays a vital role, for in a custody dispute, the [trial] court must be the vanguard for the best interests of the child" (Paige K. B. v Molepske, supra, 219 Wis 2d, at 434-435, 580 NW2d, at 296 [citations omitted]).

 

The reasoning of the Supreme Court of Wisconsin is persuasive. The record in this case illustrates why quasi-judicial immunity is needed. Available remedies were not utilized. No request to the court for replacement of the Law Guardian was ever made and no appeal was perfected by plaintiff from any order made by Judge Rosa. Nevertheless, plaintiff brought two meritless lawsuits against Judge Rosa, and she brought this lawsuit against defendant, who was required to provide her own defense. Law Guardians are now compensated in New York for services in trial courts at the rate of $ 40 per hour for in-court time and $ 25 per hour for out-of-court  [*119]  time (see, Judiciary Law § 35 [3]),  [***26]  as are attorneys appointed to represent indigents under County Law article 18-B, except in death penalty cases (see, County Law § 722-b).

 

According to news reports, concern about the availability of attorneys to serve at those rates and about the quality of representation provided led Governor Pataki and legislative leaders to agree that the rates should be raised, and a three-person commission was appointed to make recommendations (see, Wise, Assigned Counsel Wins Case and Higher Rates, NYLJ, Jan. 18, 2001, at 1, col 4; Caher, Committee Proposes Indigent Defense Plan, NYLJ, July 10, 2001, at 1, col 3; Caher, Budget for Judiciary Approved Unaltered, NYLJ, Aug. 6, 2001, at 1, col 5). Solving the problem has been made more difficult by the financial consequences of the attack on the World Trade Center on September 11, 2001 (see, Fritsch, Pataki Rethinks his Promise of a Raise for Lawyers to the Indigent, New York Times, Dec. 24, 2001, at F1, col 2). Exposure of attorneys to tort liability to those they have been appointed to represent has not been mentioned in the cited articles as a factor affecting the willingness of qualified [***27]   [**481]  attorneys to accept appointments, but it is apparent that such exposure would exacerbate the problem. At least with respect to a Law Guardian appointed to represent a young child in a visitation dispute between parents, that disincentive is against public policy and should be eliminated. We agree with the Supreme Court of Wisconsin that there are other available remedies if a Law Guardian is derelict in performing his or her duties.

 

IV

 

PART 130 COSTS

 

Defendant asserts on her cross appeal that Supreme Court erred in refusing to grant her judgment for out-of-pocket costs of $ 5,000 on the ground that plaintiffs' suit is frivolous (see, 22 NYCRR 130-1.1 [a], [c]). Because New York appellate courts have not previously addressed the issues raised in this case, we decline to grant defendant judgment.

 

V

 

CONCLUSION

 

The court properly dismissed the complaint but should have done so on the ground that plaintiff lacks standing to bring an action either on behalf of her child or individually against a  [*120]  Law Guardian appointed to represent the child in a visitation dispute between the child's parents. Accordingly,  [***28]  we conclude that the order should be affirmed.

 

Wisner, Kehoe, Gorski and Lawton, JJ., concur.

 

Ordered that the order so appealed from be and the same hereby is unanimously affirmed, with costs to defendant.

 

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