In the Matter of James MM., Respondent, v. June OO., Appellant.
SUPREME COURT OF
294 A.D.2d 630; 740 N.Y.S.2d
730 (3d
[*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,
Ordered
that the orders are affirmed, without costs.
In the
Matter of Catherine Carballeira, Appellant, v. Loren Shumway, Respondent.
86313
SUPREME COURT OF
273 A.D.2d 753; 710 N.Y.S.2d
149 (3d
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
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,
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
500994
SUPREME COURT OF
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,
ORDERED that the order is
reversed, on the law, without costs, and matter remitted to the
[*1] IN THE MATTER OF KRISTI
L.T., PETITIONER-RESPONDENT, v ANDREW R.., RESPONDENT-APPELLANT.
1630 CAF 07-01093
SUPREME COURT OF
2008 NY Slip Op 933; 48
A.D.3d 1202; 850 N.Y.S.2d 765 (4th
[***765]
Appeal from an order of the Family Court,
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
[**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
[*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
269 A.D.2d 82; 711 N.Y.S.2d
663 (4th
[*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
105 A.D.2d 523; 481 N.Y.S.2d
784 (3d
[*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
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
297 A.D.2d 328; 746 N.Y.S.2d
313 (2d
[*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
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
281 A.D.2d 969; 722 N.Y.S.2d
323 (4th
[*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
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,
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
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,
We modify the order,
therefore, by awarding custody of Erin, Nicholas and
Present--Pigott,
Jr., P. J., Pine, Hayes, Scudder and
Commissioner
of Social Services of the City of
49369
SUPREME COURT OF
196 A.D.2d 439; 601 N.Y.S.2d
481 (1st
[**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,
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
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
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
In the
Matter of the Custody of Rebecca B., an Infant. Renee B., Respondent; Michael B., Appellant.
58041, 58042
SUPREME COURT OF
227 A.D.2d 315; 642 N.Y.S.2d
685 (1st
[*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
305 A.D.2d 1080; 759 N.Y.S.2d
275 (4th
[*1080]
[**275] Appeal from an order of
Family Court,
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
245 A.D.2d 889; 666
N.Y.S.2d 820 (3d
[*889]
[**821]
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
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
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
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
211 A.D.2d 951; 622 N.Y.S.2d
336 (3d
[*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
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
2008 NY Slip Op 981;
48 A.D.3d 203; 850 N.Y.S.2d 415 (1st
[**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
151 A.D.2d 1015; 542 N.Y.S.2d
81 (4th
[*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
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
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
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
[*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
4 A.D.3d 747; 771 N.Y.S.2d
476 (4th
[*747]
[**476] Appeal from an order of
the Family Court,
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
17 A.D.3d 1038; 794 N.Y.S.2d
195 (4th
[*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
2 A.D.3d 476; 768 N.Y.S.2d
498 (2d
[*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
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
291 A.D.2d 106; 737 N.Y.S.2d
471 (4th
[*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
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
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
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
Ordered that the order so
appealed from be and the same hereby is unanimously affirmed, with costs to
defendant.
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