ETHICS FOR ATTORNEYS FOR CHILDREN

Transcription

1 NEW YORK STATE SUPREME COURT APPELLATE DIVISION, FOURTH DEPARTMENT ATTORNEYS FOR CHILDREN PROGRAM HONORABLE HENRY J. SCUDDER PRESIDING JUSTICE ETHICS FOR ATTORNEYS FOR CHILDREN January 2015

2 GENERAL POLICY CONSIDERATIONS SECTION 7.2 OF THE RULES OF THE CHIEF JUDGE SUMMARY OF RESPONSIBILITIES OF ATTORNEY FOR THE CHILD

3 GENERAL POLICY CONSIDERATIONS Role the Attorney for the Child Historically, the definition the role the attorney for the child has engendered a great deal confusion. Many attorneys, and indeed many Judges, have viewed the role the attorney for the child to be in the nature a guardian ad litem. It is clear, however, that the role the attorney for the child is very different from that a guardian ad litem. A guardian ad litem, who need not be an attorney, is appointed as an arm the Court to protect the best interests a person under a legal disability. In contrast, the role the attorney for the child is to serve as a child's lawyer. The attorney for the child has the responsibility to represent and advocate the child's wishes and interests in the proceeding or action. With regard to the role the attorney for the child please carefully review the Rule the Chief Judge 7.2 and the Summary Responsibilities the Attorney for the Child that follows on pages 3-4 this document. Protocols In view the age your clients and the sensitive nature the cases in which you are appointed, you are presented with unique challenges. As an attorney for children, however, you always should act in a manner consistent with proper legal practice and should not assume the role social worker, psychologist or advocate for one the parties. Although it may be tempting to step outside the role counsel for the child, particularly when the circumstances the case are especially tragic, the rules good lawyering are as applicable to you as to any attorney in a civil proceeding or action. Examples improper practices include:! engaging in ex parte communications with the Judge without the express approval all parties! communicating with the parties in the absence their counsel! requesting confidential documents without the proper authorization a party! disclosing client confidences without the approval the client. The attorney for the child should avoid attributing to the child any statements or recommendations regarding the ultimate disposition the case, unless the child has specifically authorized the attorney for the child to do so and understands the possible implications

4 ! the attorney for the child should not be a witness at any time during the proceeding or action in any subsequent proceeding by the same parties Because trial courts vary with regard to their expectations the attorney for the child, you should define your role and ensure that your role is understood by your client(s), the parties and their attorneys, as well as the Judge. We recognize that some trial courts are not fully aware the proper role the attorney for the child and, in some instances, may expect the attorney for the child to assume an improper role. Presiding Justice Scudder, the Fourth Department Attorneys for Children Advisory Committee, and the Attorneys for Children Program Office work to educate the bench about the proper role the attorney for the child.

5 Section 7.2 the Rules the Chief Judge Section 7.2 Function the attorney for the child. (a) As used in this part, "attorney for the child" means a[n attorney] appointed by family court pursuant to section 249 the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto. (b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex-parte communication; disclosure client confidences and attorney work product; conflicts interest; and becoming a witness in the litigation. (c) In juvenile delinquency and person in need supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. (d) In other types proceedings, where the child is the subject, the attorney for the child must zealously advocate the child s position. (1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent and in a manner consistent with the child s capacities, and have a thorough knowledge the child's circumstances. (2) If the child is capable knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes the child, even if the attorney for the child believes that what the child wants is not in the child s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course action that in the attorney's view would best promote the child's interests. (3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child s wishes is likely to result in a substantial risk imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child s wishes. In these circumstances, the attorney for the child must inform the court the child s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position. (effective October 17, 2007)

6 Summary Responsibilities the Attorney for the Child While the activities the attorney for the child will vary with the circumstances each client and proceeding, in general those activities will include, but not be limited to, the following: (1) Commence representation the child promptly upon being notified the appointment; (2) Contact, interview and provide initial services to the child at the earliest practical opportunity, and prior to the first court appearance when feasible; (3) Consult with and advise the child regularly concerning the course the proceeding, maintain contact with the child so as to be aware and respond to the child's concerns and significant changes in the child s circumstances, and remain accessible to the child; (4) Conduct a full factual investigation and become familiar with all information and documents relevant to representation the child. To that end, the lawyer for the child shall retain and consult with all experts necessary to assist in the representation the child. (5) Evaluate the legal remedies and services available to the child and pursue appropriate strategies for achieving case objectives; (6) Appear at and participate actively in proceedings pertaining to the child; (7) Remain accessible to the child and other appropriate individuals and agencies to monitor implementation the dispositional and permanency orders, and seek intervention the court to assure compliance with those orders or otherwise protect the interests the child, while those orders are in effect; and (8) Evaluate and pursue appellate remedies available to the child, including the expedited relief provided by statute, and participate actively in any appellate litigation pertaining to the child that is initiated by another party, unless the Appellate Division grants the application the attorney for the child for appointment a different attorney to represent the child on appeal.

7 ETHICAL QUESTIONS AND ANSWERS

8 QUESTIONS & ANSWERS Q. What is the function the attorney for children? A. Attorneys for children are appointed for minors who ten require the assistance counsel to help protect their interests and to help them express their wishes to the court (Family Ct Act 241 [emphasis added]). The dual role the statute places upon attorneys for children is addressed in section 7.2 the Rules the Chief Judge. That rule provides in relevant part: (b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex-parte communication; disclosure client confidences and attorney work product; conflicts interest; and becoming a witness in the litigation. (c) In juvenile delinquency and person in need supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child. (d) In other types proceedings, where the child is the subject, the attorney for the child must zealously advocate the child s position. (1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent and in a manner consistent with the child s capacities, and have a thorough knowledge the child's circumstances. (2) If the child is capable knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes the child, even if the attorney for the child believes that what the child wants is not in the child s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course action that in the attorney's view would best promote the child's interests. (3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child s wishes is likely to result in a substantial risk imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child s wishes. In these circumstances, the attorney for the child must inform the court the child s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position.

9 It is apparent from Rule 7.2 that the attorney for the child is an advocate for the child and not a guardian ad litem. CPLR 1202 (a) provides that the court in which an action is triable may appoint a guardian ad litem at any stage in the action. A guardian ad litem is charged with the responsibility close investigation and exploration the truth on the issues and perhaps even recommending by way report alternative resolutions for the court to consider (Braiman v Braiman, 44 NY2d 584). A guardian ad litem, who need not be an attorney, is appointed to protect the best interests a person under a legal disability, not to advocate the child s position. The State New York is not responsible for payment where a guardian ad litem is appointed (see CPLR 1204). Prior to the promulgation Rule 7.2, the Appellate Division discussed the function the attorney for the child in Matter Carballeira v Shumway (273 AD2d 753, lv denied 95 NY2d 764 [concluding that substituted judgment was proper because the child had just turned 11 years old at the time the hearing, suffered from numerous emotional disorders, and his judgment was impaired by the degree control the mother exercised over him]). For post Rule 7.2 cases, see e.g., Matter Mason v Mason, 103 AD3d 1207 (mother s contention that AFC improperly advocated a position contrary to child s wishes because AFC did not state basis for taking contrary position was unpreserved because mother failed to make motion to remove AFC. In any event, that contention lacked merit because the record supported the finding that the child lacked capacity for a knowing, voluntary and considered judgment); Matter Lopez v Lugo, 115 AD3d 1237, 1238 (both AFC, who advocated positions contrary to their client s wishes, amply demonstrated a substantial risk imminent serious harm to the children if their wished were followed). The attorney for the child is entitled to the same rights as those afforded to the parties attorneys (see Krieger v Krieger, 65 AD3d 1350 [the Appellate Division determined that Family Court improvidently exercised its discretion in failing to adjourn a hearing to provide the attorney for the child a reasonable opportunity to present additional witnesses ]. Conversely, the attorney for the child has no special status (see Matter William O. v Michele A., 119 AD3d 990 [the court improperly relied upon AFC as an investigative arm the court and as an advisor, referring to her as a quarterback and deferring to her recommendations in making its determination]; Aquino v Antongiorgi, 92 AD3d 780, lv denied 19 NY3d 805 [error for court to direct that mother could not file additional petitions unless attorney for the child approved]). Q. How ten should the attorney for the child meet with the client? A. A child client is entitled to independent (see Davis v Davis, 269 AD2d 82) and effective representation (see Matter Colleen CC., 232 AD2d 787). In order to represent a child effectively, an attorney for the child should have regular contact to ascertain the child s wishes and concerns and to counsel the child concerning the proceeding (see Matter Christopher B. v Patricia B., 75 AD3d 871 [the court erred because its order was issued before the attorney for the child could interview his client,

10 thus prohibiting the attorney from taking an active role in and effectively representing the interests his client]; Matter Lamarcus E., 90 AD3d 1095 [The Appellate Division relieved the appellate attorney her assignment, determining that the child client had been denied effective assistance counsel. Counsel s failure to consult with and advise the child to the extent and in a manner consistent with the child s capacities (citation omitted) constitutes a failure to meet her essential responsibilities as the attorney for the child. Client contact, absent extraordinary circumstances, is a significant component to the meaningful representation a child. ]; see also Matter Dominique AW., 17 AD3d 1038, lv denied 5 NY3d 706). Q. Should the same attorney for the child be assigned when the child is involved in a subsequent proceeding? A. Successive appointments are favored. Authority for this proposition is in Family Court Act 249 (b), which provides: In making an appointment an attorney for the child pursuant to this section, the courts shall, to the extent practicable and appropriate, appoint the same attorney for the child who has previously represented the child [emphasis added]; (see Matter Kristi LT. v Andrew RV., 48 AD3d 1202, lv denied 10 NY3d 716 [ the record establishes that the parties have had proceedings before at least three different judges. The same [attorney for the child] 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[n attorney for the child] the court shall, to the extent practicable and appropriate, appoint the same attorney for children who has previously represented the child (Family Ct Act 249 [b]). The record establishes that the prior [attorney for the child] was available, and we conclude that he should have been reappointed [emphasis added]). Q. Under what circumstances is it appropriate to replace an attorney for the child because a conflict? A. Where an attorney for the child jointly represents siblings and an actual conflict arises, the attorney for the child should be replaced because continued representation would violate the ethical rules zealous representation and preservation client confidences (see Gary DB. v Elizabeth CB., 281 AD2d 969; Matter H. Children, 160 Misc 2d 298; see also Corigliano v Corigliano, 297 AD2d 328). Disqualification is not necessary where the interests the siblings are not adverse and an actual conflict is not demonstrated (see Matter Rosenberg v Rosenberg, 261 AD2d 623; Anonymous v Anonymous, 251 AD2d 241; Matter Zirkind v Zirkind, 218 AD2d 745). Q. Under what circumstances may an attorney for the child divulge a client confidence or secret?

11 A. It is well settled that a child client s confidences and secrets are privileged communications (see Matter Angelina AA., 211 AD2d 951, lv denied 85 NY2d 808; Matter Bentley v Bentley, 86 AD2d 926). Of course, in the attorney for the child s role as counselor, in an appropriate case, the attorney for the child should always attempt to convince the client that consent to disclosure is the best course action (see Matter Carballeira v Shumway, supra at 757). Before adoption the Attorney Rules Pressional Conduct, under the New York Code Pressional Responsibility, disclosure in the event a legal disability was not permitted. Thus, an attorney could not disclose communications the client on an issue such as the sexual abuse the client without the client s consent. The Attorney Rules Pressional Conduct now permit disclosure in certain instances. RULE 1.14 Client With Diminished Capacity (a) When a client s capacity to make adequately considered decisions in connection with a representation is diminished, whether because minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client. (b) When the lawyer reasonably believes that the client has diminished capacity, is at risk substantial physical, financial or other harm unless action is taken and cannot adequately act in the client s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment a guardian ad litem, conservator or guardian. (c) Information relating to the representation a client with diminished capacity is protected by Rule 1.6 [confidentiality information]. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6 (a) to reveal information about the client, but only to the extent reasonably necessary to protect the client s interests. Q. Under what circumstances may an attorney for a child be called as a witness in a proceeding involving her client? A. An attorney for the child may not testify if the attorney-client privilege applies (see Matter Angelina AA., supra [Family Court properly refused to allow attorney for the child to testify about veracity statements Angelina made at in-camera hearing; she had an attorney-client relationship with the attorney for the child and did not

12 waive privilege]; Matter Rebecca B., 227 AD2d 315 [subpoenas demanding testimony attorney for the child properly quashed based upon attorney-client privilege and work product]; see also, Matter Herald v Herald, 305 AD2d 1080 [although mother sought disqualification attorney for the child on the ground that the attorney for the child might be called as a witness, she failed to meet her burden that the testimony was necessary]; Matter Morgan v Becker, 245 AD2d 889 [permitting attorney for the child to testify about observations during home visits was inappropriate, but harmless]). It is error for the court to direct the attorney for the child to testify as a witness (see Matter Cobb v Cobb, 4 AD2d 747, lv dismissed 2 NY3d 759 [ the (attorney for the child s) testimony on behalf petitioner in this case appears to be in direct contravention the Code Pressional Responsibility ]; Cervera v Bressler, 50 AD3d 837 [court properly declined to direct AFC to testify and submit his file and notes for discovery because to rule otherwise would violate ethical duties to preserve client confidences and becoming a witness]). In Matter Naomi C. v Russell A., 48 AD3d 203, 204, the Appellate Division dismissed a petition to modify an order custody, stating: Although the court was warranted in dismissing the petition on its face, we point out that the questioning the [attorney for the child] *** by the court is something that should not be repeated. With the parties present, the court asked the [Attorney for the Child], on the record, to discuss the position the 10-year-old child regarding how well the current custody arrangement was working. Although the court was correct to disallow the cross-examination the [Attorney for the Child] by petitioner s counsel, the court should not consider the hearsay opinion a child in determining the legal sufficiency a pleading in the first place. Most importantly, such colloquy makes the [Attorney for the Child] 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 the Chief Judge [22 NYCRR] 7.2[b]) (emphasis added). In Cervera v Bressler, supra, the Appellate Division determined that the court erred in denying the father s motion to remove the AFC because the AFC submitted affirmations that included facts not in the record, which were hearsay gleaned from the the mother. That behavior, as well as the AFC s ad hominum attacks on the father, were unpressional and inappropriate and amounted to the AFC acting as a witness against the father. Unless an exception applies, Rule Pressional Conduct rule 3.7 requires the attorney for the child to withdraw from the case if the attorney for the child is likely to be a witness on a significant issue fact. Q. Under what circumstances may an attorney for the child communicate with a party and when may a party s attorney speak

13 with the attorney for the child s client? A. During the course representation the child the attorney for the child is precluded from communications with a party where the attorney for the child knows the party is represented by counsel, unless the attorney for the child has the prior consent the party s counsel (see Rule Pressional Conduct rule 4.2). Conversely, the attorney for the child should advise the parties' attorneys at the outset the proceedings that the child should not be interviewed or examined by such attorneys without the prior consent the attorney for the child (see Rule Pressional Conduct rule 4.2). Q. What other situations require that the attorney for the child consent before the child may be interviewed? A. In a custody case, the attorney for the child must consent before the child is interviewed by a mental health expert (see Campolongo v Campolongo, 2 AD3d 476 [absence attorney for the child at interview child by psychiatrist who was retained by father on advice father s attorney, without the attorney for the child s knowledge and consent, violated child s right to due process]; Matter Awan v Awan, 75 AD3d 597 [In a custody proceeding, Family Court did not err in striking the testimony an expert retained by the father, and in precluding further testimony by this expert. The father's attorney violated the Rules Pressional Conduct (22 NYCRR ) rule 4.2 by allowing a physician, whom the attorney retained or caused the father to retain, to interview and examine the subject child regarding the pending dispute and to prepare a report without the knowledge or consent the attorney for the child]). In a child protective proceeding, DSS caseworkers may interview the client an attorney for child without the attorney for the child s consent (see Matter Cristella B., 77 AD3d 654 [Family Court properly denied a motion the attorney for children to direct the County Department Social Services (DSS) to refrain from interviewing his clients concerning any issues beyond those related to safety, without 48 hours notice to him. The child who is the subject a neglect proceeding has a constitutional and statutory right to legal representation, and Rule 4.2 the Rules Pressional Conduct (22 NYCRR ), which prohibits an attorney representing another party in litigation from communicating with or causing another to communicate with a child without prior consent the attorney for the child, applies only to attorneys. DSS has constitutional and statutory obligations toward children in its custody, and has mandate to maintain regular communications with children in foster care on a broad range issues that go beyond their immediate health and safety]; see also Matter Tiajianna M., 55 AD3d 1321]). Q. What is the attorney for the child s role in a stipulation regarding custody and/or visitation?

14 A. In Matter Figueroa v Lopez, 48 AD3d 906, 907, the Appellate Division reversed Family Court s order, which was based upon a stipulation the parties resolving a custody matter. The Appellate Division stated: Here, the [attorney for the child] 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 attorney for the child s position as ridiculous, without allowing an explanation for his position to be placed on the record. The attorney for the child 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 an attorney for the child will result in reversal if the record indicates sufficient facts to uphold the determination (see Matter White v White, 267 AD2d at 890; see also Matter Vickery v Vickery, 28 AD3d 833, 834 [2006]; Matter Kaczynski v. Van Amerongen, 284 AD2d 600, 603 [2001]), this sparse record is inadequate (emphasis added). In Matter McDermott v Bale, 94 AD3d 1542, 1543, the Appellate Division, Fourth Department determined that although the attorney for the child was entitled to a full and fair hearing and the right to object to the parties stipulation, the attorney for the child could not preclude the court from approving the settlement because children in custody cases should [not] be given full-party status such that their consent is necessary to effectuate a settlement...there is a significant difference between allowing children to express their wishes to the court and allowing their wishes to scuttle a settlement. Q. Under what circumstances may the attorney for the child make a report to the court or rely upon hearsay? A. It is improper for the court to direct the attorney for the child to prepare and file an attorney for the child report the attorney for the child is not an investigator, but an attorney thus, the attorney for the child should not submit any pretrial report to the court (see Matter Cobb v Cobb, supra; see also Matter Graham v Graham, 24 AD3d 1051 [ improper for court to direct attorney for the child to file a report and the attorney for the child should not have made recommendations, but should have taken a position as did the the parties attorneys]. It is also improper for the attorney for the child to relay hearsay to the court outside a formal written report (see William O. v Michele A., supra [the court erred in relying upon attorney for the child s information that the father was untreated sex fender]; Matter New v Sharma, 91 AD3d 652 [ to the extent that the Family Court relied on the detailed accounts provided by the attorney for the child concerning her conversations with the child, it is inappropriate for an attorney for the child to present reports containing facts which are not part the record ]. Q. When is it proper for the attorney for the child to speak privately with the Judge about the case?

15 A. Section 7.2 the Rules the Chief Judge explicitly prohibit such ex parte communications. Moreover, the Advisory Committee on Judicial Ethics in opinion #95-29 has stated that a Judge may not discuss with a[n attorney for the child] the position the [attorney for the child] with regard to the interests the child outside the presence the parties, the parents or their attorneys, unless all parties consent. Q. May the attorney for the child raise new facts on appeal? A. Yes, an appellate court may take notice new facts and allegations to the extent they indicate that the record before it is no longer sufficient for determining issues fitness and right to custody the child (see Matter Michael B., 80 NY2d 299). Q. What are the attorney for the child s duties on appeal? A. The attorney for the child s duties on appeal include, among other things, the duty to meet with the client to ascertain the client s position on appeal. Failure to do so constitutes ineffective assistance appellate counsel (see Matter Lamarcus E., supra at 1096; Matter Mark T. v Joyanna U., 64 AD3d 1092, 1095). If an attorney for the child wishes to raise contentions in the client s brief on behalf the client in opposition to the order appealed from, the attorney for the child must take a cross appeal (see Matter Jayden B., 91 AD3d 1344). The transcript a Lincoln hearing should be sealed and made available only to an appellate court (see Matter Sellen v Wright, 229 AD2d 680). In Matter Kessler v Fancher, 112 AD3d 1323, the Appellate Division, Fourth Department affirmed the dismissal the mother s petition seeking modification a custody order because the mother had not taken an appeal and the children could not force the mother to litigate a petition she had abandoned.

16 ETHICS FOR ATTORNEYS FOR CHILDREN SELECTED CASES

17 ROLE OF THE ATTORNEY FOR CHILDREN (AFC) Matter William O. v Michele A., 119 AD3d Matter Lopez v Lugo, 115 AD3d Matter Mason v Mason, 103 AD3d Matter Aquino v Antongiorgi, 92 AD3d 780, lv denied 19 NY3d Matter Krieger v Krieger, 65 AD3d Matter Carballiera v Shumway, 273 AD2d 753, lv denied 95 NY2d CONTINUITY OF REPRESENTATION Matter Kristi LT. v Andrew RV., 48 AD3d 1202, lv denied 10 NY3d 716 ) INDEPENDENT REPRESENTATION Davis v Davis, 269 AD2d Matter Colleen CC., 232 AD2d CONFLICTS Corigliano v Corigliano, 297 AD2d Gary DB. v Elizabeth CB., 281 AD2d ATTORNEY-CLIENT PRIVILEGE Matter Rebecca B., 227 AD2d Matter Angelina AA., 211 AD2d 951, lv denied 85 NY2d AFC AS WITNESS Cervera v Bressler, 50 AD3d Matter Naomi C. v Russell A., 48 AD3d Matter Cobb v Cobb, 4 AD3d 747, lv dismissed 2 NY3d SEALING THE TRANSCRIPT OF THE LINCOLN HEARING Matter Sellen v Wright, 229 AD2d AFC REPORTS Matter New v Sharma, 91 AD3d Matter Graham v Graham, 24 AD3d 1051, lv denied 6 NY3d MEETING WITH CLIENTS Matter Christopher B. v Patricia B., 75 AD3d Matter Dominique AW., 17 AD3d 1038, lv denied 5 NY3d AFC CONSENT TO THIRD-PARTY INTERVIEWS Matter Cristella B., 77 AD3d Matter Awan v Awan, 75 AD3d STIPULATIONS Matter McDermott v Bale, 94 AD3d Matter Figueroa v Lopez, 48 AD3d DUTIES ON APPEAL Matter Kessler v Fancher, 112 AD3d Matter Jayden B., 91 AD3d Matter Lamarcus E., 90 AD3d Matter Mark T. V Joyanna U, 64 AD3d

18 119 A.D.3d 990 Page A.D.3d 990, 988 N.Y.S.2d 299 as well. Later that month, in anticipation his re Matter William 0. v Michele A. parents were awarded custody the youngest child as the grandparents). In September 2011, the grand C (Cite as: 119 A.D.3d 990, 988 N.Y.S.2d 299) 119 A.D.3d 990 Wesflaw Treathttp://web2.west1aw.comJprint/printstream.aspx?destinationatp&vr2.O&prid=1a /7/2014 Wanda A. *991 (hereinafter collectively referred to or order custody and visitation. the two older children was awarded to the children s Emily Karr Cook, Elmira, attorney for the children. July 12, 2012, which, among other things, partially 2009, while the father was incarcerated, custody ment, New York July 3,2014 CITE TITLE AS: Matter William 0. v Michele A. Parent, Child and Family Court Chemung County (Buckley, J.), entered dren (born in 2006, 2007 and 2009). In October Paul R. Corradini, Elmira, for John A. and another, Michele A., Respondent, and John A. et al., Re spondents. HEADNOTE Modification Sex Offender granted petitioner s application, in a proceeding pursuant to Family Ct Act article 6, to modify a pri V In the Matter William 0., Appellant , 2014 N.Y. Slip Op Supreme Court, Appellate Division, Third Depart Custody Margaret McCarthy, Ithaca, for appellant. respondents. McCarthy, J. Appeal from an order the Family Petitioner (hereinafter the father) and respondent Michele A. are the unmarried parents three chil maternal grandparents, respondents John A. and 119 A.D.3d 990, 98$ N.Y.S.2d 299, 2014 WL NY,2014. ment Ineffective Assistance Counsel three children. Finally, after an appearance before Family Court in July 2012, the court determined, appealsjn his completing sex fender treatment. The father custody modification petitions filed by the father on order that modified the supervised visitation sched the court continued custody with the grandparents, but awarded the father supervised visitation with all ing subsequent appearances before Family Court, ule, but conditioned **2 any consideration future ceeding seeking custody the youngest child. Dur without holding a fact-finding hearing, that the father was an untreated sex fender and entered an assistance counsel. We agree. Family Court con tinued supervised visitation and denied the father s treated sex fender.2this belief came from in garding the issues sex fender treatment and the best interests the children renders the representa sel to object to this improper use the attorney for 786, 788 ii [2003]). The failure the father s coun whether a lack treatment would be detrimental to demonstrates that Family Court improperly relied terminations (see Weigther V H eiglhojr, I AD3d to her as the court s quarterback and regularly de $8 AD3d 1089, [2011]). The record by the father, and with no evidence presented as to the record, the accuracy which was challenged for the children that was based on evidence outside igative arm the court and as an advisor, referring custody application, without holding a fact-finding hearing, based upon its belief that he was an un formation provided to family Court by the attorney ferring to her recommendations in reaching its de lease from prison, the father commenced this pro The father contends that he was denied the effective the children (see generally Matter Cart v McEver upon the attorney for the children as both an invest the children or to request a fact-finding hearing re tion less than meaningful (see Matter *992 Page 2 67

19 Lahtinen, J.P., Rose, Lynch and Devine, JJ., con Slip op , 988 N.Y.S.2d see also Matter Jaikob 0. [William C).], 88 Family Court s order must be reversed. AD3U 1075, [201 1J).FN3 Accordingly, N.Y. Slip Op , 988 N.Y.S.2d WL N.Y. 119 A.D.3d 990, 988 N.Y.S.2d WL A/htchell v Childs, 26 AD3d 685, [2006]; Matter William 0. v Michele A. (Cite as: 119 A.D.3d 990, 988 N.Y.S.2d 299) 119 A.D.3d A.D.3d 990 Page 2 0&pridia /7/ NY,2014. Copr. (c) 2014, Secretary State, State New York mained silent. extensively while his counsel largely re At several appearances, the father spoke five different attorneys appeared on his be with his case or prepared to represent him. dividual attorneys were not always familiar half at the nine court appearances. The in represented by one institutional provider, FN3. We note that, although the father was father was incarcerated in New York for he commenced the instant proceeding, the child in New Jersey in 1994, after enga victed endangering the welfare a ging in sexual intercourse with two teenage girls when he was 20 years old. At the time failing to register as a sex fender. fn2. The father admitted to being con 1199, 1201 [2011], lv deniedl8 NY3d 803 Melissa WW. V Conley.XX., 88 AD3 d 114 AD3d 1091, [2014]; Matter see Matter Vahnas-A [ann v Loewengztth, us inasmuch as only the father appealed ( raised by the father are not properly before order, her arguments regarding an issue not dren also seeks review Family Court s [2012]). fni. Although the attorney for the chil FOOTNOTES not inconsistent with this Court s decision. costs, and without matter remitted to the Family Court Chemung County for further proceedings END OF DOCUMENT cur. Ordered that the order is reversed, on the law, WL $ N.Y. Slip Op Page 3 67

20 NY,2014. is unanimously affirmed without costs. 115 A.D.3d 1237, 982 N.Y.S.2d 640 It is hereby ordered that the order so appealed from Matter Lopez v Lugo C Lopez. (Cite as: 115 A.D.3d 1237, 982 N.Y.S.2d 640) 115 A.D.3d 1237 Page A.D.3d 1237 West[aw 11/7/ ment, New York CITE TITLE AS: Matter Lopez v Lugo article 6. The order, among other things, awarded Child s Wishes Substantial Risk Imminent Ser A.J. Bosman, Attorney for the Child, Rome in a proceeding pursuant to Family Court Act Attorney for Child Advocating Position Contrary to er-appellant. counsel), for respondent-appellant and petition Parent, Child and Family Lopez, Respondent, v Jennifer Lugo, Appellant. In Lopez et al., Respondents. Supreme Court, Appellate Division, Fourth Depart Parent, Child and family Custody March 21, 2014 Custody Limited Visitation with Noncustodial Parent Koslosky & Koslosky, Utica (William L. Koslosky Steven R. fortnam, Attorney for the Child, Westmoreland. Appeal from an order the Family Court, Oneida County (James R. Griffith, J.), entered January 14, Jennifer Lugo, Appellant. In the Matter Wilfredo HEADNOTES V In the Matter Wilfredo Lopez et at., Respondents , 2014 N.Y. Slip Op the Matter Jennifer Lugo, Appellant, v Wilfredo ious Harm Demonstrated sole custody the subject children to Sandro peals, as limited by her notice appeal, from an limited by the mother s notice appeal to the is sues custody, parenting time, contact with the draw are not properly before this Court (see Gray v Mason, 103 AD3d 1207, [20131). In any tion, and thus the mother s contentions regarding the court s resolution the AFC s motion to with clude all the relevant papers that were before the [2007]; LeRol & Assoc. v Bryant, 309 AD2d 1144, AD3d 1144, 1145 [2013]; see Matter Mason v resentation (Matter Brown v Wolfgra,n, 109 Williams, 10$ AD3d 1085, 1087 [20131). In addi AFC s motion to withdraw from representing the dren are not before us on this appeal. The appeal is mother s **2 husband and a grandparent s visita tion, the record on appeal does not contain the to assemble a proper record on appeal (Gajjhey v Gaf/.wy. 29 AD3d 857, 857 [2006]), which must in The mother failed to preserve for our review her and thus failed to provide [him] with effective rep [child s] position regarding custody and visitation 1145 [2003]). Matter Rodriguez v Ward, 43 AD3d 640, 64] Santoshia L., 202 AD2d 1027, 1028 [19941; see 102 AD3d [2013]). The mother, as the a motion by the Attorney for the Child (AFC) to subject children to petitioner-respondent Sandro Lopez (father). Initially, we note that the mother s appellant, submitted this appeal on an incomplete record and must suffer the consequences (A lauter 115 A.D.3d 1237, 982 N.Y.S.2d 640, 2014 WL Memorandum: Respondent-petitioner (mother) ap order that, inter alia, granted sole custody the contentions with respect to Family Court s denial withdraw from representing one the subject chil subject child. It is the obligation the appellant motion court (see Aurora Indies., Inc. v Ha/warn, contention *1238 that the AFC representing the other subject child failed to advocate for the Page 5 67

21 NYCRR 7.2 [dj), an exception exists where, as must zealously advocate the child s position (22 Sconiers and Valentino, J]. *1239 failed to provide the subject children with effective [1982]). Present Smith, J.P., F ahey, Lindley, representation is without merit. Although an AFC event, the mother s contention that both AFCs (Cite as: 115 A.D.3d 1237, 982 N.Y.S.2d 640) Eschbach V Eschhach, 56 NY2d 167, limited visitation and supervised contact best interests the children (see generally is in the 115 A.D.3d A.D.3d 1237 Page 2 0&pridia /7/ the mother s husband and the subject children be to discuss the litigation with the subject children, as the court s determination with respect to custody, that there is insufficient evidence supporting the supervised. The court s determination regarding custody and visitation issues, based upon a first after an evidentiary hearing, is entitled to great peatedly violated the court s orders directing her not subject children discussed above, we conclude that hand assessment the credibility the witnesses denied84 NY2U 810 [1994]). Here, the record sup ports the court s conclusion that the mother re Based on those violations and the dangers to the the mother, and directing that all contact between well as the orders awarding temporary custody the subject children to their paternal grandfather. L.J. V Sherry H., 206 AD2d 886, 886 [1994], lv ject children to the father, with limited visitation to evidentiary basis in the record (Mutter Samuel weight and will not be set aside unless it lacks an court s determination awarding custody the sub finally, we reject the mother s further contention husband assaulted one the subject children who ing the mother s arrest for possession drugs in the children s presence, the numerous weapons that the mother with an electrical cord. ent, serious harm (22 NYCRR 7.2 [dl [3]), includ trary to their respective clients wishes, and both credible evidence establishing that the mother s attempted to intervene when the husband attacked noted for the court that they were advocating con [2012], lv denied20 NY3d 862 [2013]). Both AfCs had been seized from the mother s house, and the NYCRR 7.2 [U] [3]; see Mason, 103 AD3d at 1208; imminent, serious harm to the child (22 child s wishes is likely to result in a substantial risk here, the AFC is convinced. amply demonstrated the substantial risk 1mm in WL N.Y. 51ip Op Slip Op , 982 N.Y.S.2d N.Y. Slip Op , that following the Matter Swinson v Dobson, 101 AD3U 16$6, 1687 N.Y.S.2d WL N.Y. 115 A.D.3d 1237, 982 N.Y.S.2d WL Matter Lopez v Lugo NY,20l4. Copr. (c) 2014, Secretary State, State New York END Of DOCUMENT Page 6 67

22 Matter Mason v Mason C (AFC) improperly advocated a position that was contrary to the child s express wishes because the (Cite as: 103 A.D.3d 1207, 959 N.Y.S.2d 577) 103 A.D.3d A.D.3d 1207 Page 1 West[aw http ://web2.westlaw.com/print/printstream.aspx?destinationatp&vr2.0&prid=ia /7/ Chautauqua County (Judith S. Claire, J.), entered spondent sole custody the subject child. rangement by granting sole custody the parties mother contends that the Attorney for the Child Supreme Court, Appellate Division, Fourth Depart ment, New York CITE TITLE AS: Matter Mason v Mason Parent, Child and family spondent. town, for Kali A.M. child to respondent father following a hearing. The Child s Express Wishes Custody Attorney for Child Advocating Position Contrary to Richard L. Sotir, Jr., Jamestown, for respondent-re Appeal from an order the Family Court, counsel), for petitioner-appellant. Aaron G. Mason, Respondent. Goodell & Rankin, Jamestown (R. Thomas Rankin Family Court Act article 6. The order awarded re order that modified the parties joint custody ar September 15, 2011 in a proceeding pursuant to Memorandum: Petitioner mother appeals from an It is hereby ordered that the order so appealed from V In the Matter Paula L. Mason, Appellant ,2013 N.Y. Slip Op. 0081$ 103 A.D.3d 1207, 959 N.Y.S.2d 577, 2013 WL NY,2013. February 8, 2013 HEADNOTE 103 A.D.3d 1207, 959 N.Y.S.2d 577 is unanimously affirmed without costs. the AFC do so (see 22 NYCRR 7.2 [d] [3]), which the denial her request rendered her attorney s has failed to establish that she received less than [2002], lv denied99 NY2U 505 [2003]). ment for that the child: [w]hen the [AFC] is Contrary to the mother s further contention, we con generally Matter Rosso v Gerouw-Rosso, 79 considered judgment (22 NYCRR 7.2 [dj [3]; see KK., 99 AD3d 1075, 1077 [2012]). Moreover, we the child (Swinson, 101 AD3d at 1687, quoting the Af C did here (see Matter Kash(f It. v Lataya 22 NYCRR 7.2 [d] [3]). The obligation the AFC, in a substantial risk imminent, serious harm to convinced either that the child lacks the capacity it. There are only two circumstances in which an we conclude that the mother s contention lacks mer Juliet M., 16 AD3d 211, 212 [2005]). In any event, v Dobson. 101 AD3d 1686, 1687 [2012]; Matter that contrary position. The mother s contention is not preserved for our review because she made no motion to remove the AFC (see Matter Swinson that following the child s wishes is likely to result where the AFC is convinced that one those two circumstances is implicated, is to inform the court the child s wishes, if the child requests that tacked the capacity for knowing, voluntary and her new attorney to prepare for the **2 hearing (see see Matter Tonziny R., 29$ AD2d 967, 968 al prejudice as a result the denial her request ( meaningful representation or that she suffered actu representation ineffective inasmuch as the mother, ijatter Anthony M., 63 NY2d 270, denying her request for an adjournment to enable AFC failed to state the basis *1208 for advocating AFC is authorized to substitute his or her own judg for knowing, voluntary and considered judgment, or note that the record supports a finding that the child AD3d 1726, 1728 [2010]). clude that the court did not abuse its discretion in [1984]). We also reject the mother s contention that Page $ 67

23 92 A.D.3d 780, 93$ N.Y.S.2d 460 Matter Aquino v Antongiorgi H (Cite as: 92 A.D.3d 780, 938 N.Y.S.2d 460) 92 A.D.3d A.D.3d 780 so as to award her sole custody the children and to direct that the children attend therapy, and direc Page 1 tion which were, in effect, to modify the same order Westtaw. 11/7/2014 Custody February 14, 2012 Michael R. Varbie, Poughkeepsie, N.Y., for re after a limited hearing, in effect, denied her peti custody the parties children with certain visita children, denied those branches her separate peti Carol Kahn, New York, N.Y., for appellant. tion to her, so as to award her sole custody the Parent, Child and Family HEADNOTE Modification Waiver Right to Full Evidentiary Hearing neider v Weinschneider, 73 AD3d 1194, 1195 CITE TITLE AS: Matter Aquino v Antongiorgi dated November 4, 2009, awarding the father sole tion, in effect, to modify an order the same court pursuant to Family Court Act articles 6 and 8, the mother appeals, as limited by her brief, from so In related visitation and family fense proceedings the children. spondent. Neal D. Futerfas, White Plains, N.Y., attorney for much an order the family Court, Dutchess County (forman, J.), dated January 19, 2011, as, in the best interests the children for it to modify 6 AD3d 536 [2004]; see also Matter Weinsch AD3d 950, [2010]; Matter I-Join v Zullo, the children (see Matter Pehiso v Kusun, 78 Arduino v Ayuso, 70 AD3d 682 [2010]; **2 Matter formed decision consistent with the best interests Contrary to the mother s contention, the Family accordingly, will not be disturbed (see Matter regarding custody and related matters should be so-called mini-hearing procedure, thus waiving Goldman e Goldman, 201 AD2d 860, 862 [1994]; hearing was not necessary, since the family Court possessed sufficient information to render an in [2008]). Although, as a general rule, determinations made after a full evidentiary hearing (see e.g. Mat her right to a full evidentiary hearing (see Matter [2007]). In any event, a full evidentiary cf Matter Richmond v Perez. 38 AD3d 782, ), here, the mother consented to the Family Court s Matter Perez v Martinez, 52 AD3d 51 8, 519 ter Brooks v Brooks. 255 AD2U 382, 383 [1998] Mohahir v Singh, 63 AD3d 1159, 1159 [2009]; has a sound and substantial basis in the record and, a prior order awarding the father sole custody the Court s determination, in effect, that it would not be parties children so as to award her sole custody, Appellant, v Ramon M. Aquino, Respondent. (Proceeding Nos. 3 and 4.) partment, New York I and 2.) In the Matter Jaclyn F. Antongiorgi, Jaclyn F. Antongiorgi, Appellant. (Proceeding Nos. Supreme Court, Appellate Division, Second De pealed from, without costs or disbursements. the court until the attorney for the children has ap tional visitation by the mother shall be accepted by dated January 19, 2011, is affirmed insar as ap there directing that no petition requesting addi V In the Matter Ramon M. Aquino, Respondent Ordered that the order dated January 19, 2011, is modified, on the law, by deleting the provision proved such a request; as so modified, the order , 2012 N.Y. Slip Op such a request. *7$J 92 A.D.3d 780, 938 N.Y.S.2d 460, 2012 WL until the [attorney for the children] has approved tion by the mother shall be accepted by the court NY,2012. ted that [nb petition requesting additional visita Page 11 67

24 Page A.D.3d 780 Page 2 92 A.D.3d 780 (Cite as: 92 A.D.3d 780, 938 N.Y.S.2d 460) [2010]). We agree, however, with the contention that the Family Court erred in directing that [nb petition requesting additional visitation by the mother shall be accepted by the court until the [attorney for the children] has approved such a request (see Matter AD3d 1249, 1250 [2007]; Matter Shreve v Shreve, 229 AD2d 1005, 1006 [1996]). We note that the alternatives to that provision proposed by the father and the attorney for the children in their respective briefs also would be improper (see erally Matter 372 [2004]; Alatter 1075 [1993]; Vogelgesang v Vogetgesang, 71 AD3d 1132, 1134 [2010]). Mastro, A.P.J., olillo, Eng and Cohen, JJ., concur. mothers Mackenzie A4 v Mwy U, 38 gen Williams v Adam H., 195 AD2d 1074, cf 0 Too/c, 4 AD3d 371. Angi Copr. (c) 2014, Secretary NY, Matter Aquino v Antongiorgi 92 A.D.3d 780, 938 N.Y.S.2d N.Y.S.2d 460 (Mem) WL N.Y. Slip Op , 938 N.Y.S.2d 46093$ N.Y.S.2d 460 (Mem) WL N.Y. Slip Op , 938 N.Y.S.2d N.Y.S.2d 460 (Mem) WL N.Y. Slip Op END OF DOCUMENT State, State New York -l http ://web2.west1aw.com/print/printstream.aspx?destinationatp&vr=2.0&prid=ia /7/2014

25 65 A.D.3d 1350, $86 N.Y.S.2d 463 petition to modify an order the same court dated Matter Krieger v Krieger ing on scheduled hearing dates, granted the father s C as, upon the mother s default in personally appear (Cite as: 65 A.D.3d 1350, 886 N.Y.S.2d 463) 65 AD.3d 1350 Page 1 65 A.D.3d 1350 WesUaw. http;//web2.west1aw.comjprint/printstream.aspx?destinationatp&vr2.0&pridia /7/2014 Donna M. McCabe, East Atlantic Beach, N.Y., for order the Family Court, Nassau *1351 County (Phillips, Ct Atty Referee), dated April 14, 2008, Court Act article 6, the attorney for the child ap peals, as limited by her brief, from so much an In a child custody proceeding pursuant to Family petitioner-respondent Brian Krieger. spondent-respondent Traci Krieger. Roberta Nancy Kaufman, Hicksville, N.Y., for re the child, appellant, pro se. Janis A. Parazzelli, floral Park, N.Y., attorney for The appointment an attorney to represent a child The right to counsel has been held to imply that disposition (Family Ct Act 24l).**2 reasoned determinations fact and proper orders due process law and may be helpful in making is ten indispensable to a practical realization ment is required by statute or, as in this case, the based on the legislative determination that counsel appointment is made in the court s discretion, is in Family Court proceedings, whether the appoint ing to adjourn bearing to provide attorney for child Parent, Child and Family HEADNOTE partment, New York witnesses and in requiring attorney for child to another state, prior to attorney advocating position Traci Krieger, Respondent. Janis Parazzelli, Nonparty Appellant. Supreme Court, Appellate Division, Second De Custody articulate her desires and whether child would be at imminent risk harm if she moved with father to that could be viewed as contrary to child s wishes. with reasonable opportunity to present additional fer expert testimony on issues child s capacity to V In the Matter Brian Krieger, Respondent , 2009 N.Y. Slip op CITE TITLE AS: Matter Krieger v Krieger 65 A.D.3d 1350, 886 N.Y.S.2d 463, 2009 WL In custody proceeding, family Court erred in fail 14, 2008, upon the mother s default in personally the child to the State Ohio. By order dated April NY,2009. September 29, 2009 the parties, inter alia, the parties were awarded By order dated January 5, 2006, entered on consent father. idential custody to the father. In May 2007, the sole custody the child to the father. rors were committed by the Family Court which re quire reversal the award sole custody to the cate with the child to the State Ohio. The attorney for the child appeals from the order Ohio, and awarded sole custody the child to the dated April 14, 2008, asserting that a number er father to relocate with the child to the State joint custody the subject child, so as to allow the without costs or disbursements, and the matter is further proceedings in accordance herewith. joint custody their adolescent daughter, with res father filed a petition to modify the order dated January 5, 2006, so as to allow him to relocate with appearing on scheduled hearing dates, the Family father and the grant permission for him to relo January 5, 2006, inter alia, awarding the parties Ordered that the order is reversed, on the law, remitted to the Family Court, Nassau County, for Court granted the father s petition, and awarded Page 14 67

26 Scott, 62 AD3d 714, 715 [20091). An attorney ap present evidence and arguments (Matter Scott v request such relief in his modification petition. torney a reasonable opportunity to appear and tody the child to the father, as the father did not the court will afford a respondent and his or her at The Family Court also erred in awarding sole cus (Cite as: 65 A.D.3d 1350, 886 N.Y.S.2d 463) 65 A.D.3d A.D.3d 1350 Page 2 0&pridia /7/2014 q The Family Court erred, however, in requiring the such a requirement (see22 NYCRR 7.2). desires and whether the child would be at imminent risk harm if she moved with the father to the wishes. The Rules the Chief Judge do not impose sition that could be viewed as contrary to the child s State Ohio, prior to the attorney advocating a po the issues the child s capacity to articulate her attorney for the child to fer expert testimony on child must follow the child s wishes to refrain from taking a position for or against requested relief where the child has the capacity to take such a posi best interest (see22 NYCRR 7.2 [dj [2]). whether the attorney believes that the grant or [bj, [cj, [d] [1]). In addition, the attorney for the ney adhere to the same ethical requirements applic tion and is not at imminent risk harm, regardless in a Family Court proceeding require that the attor Diam ante, 57 AD3U 826, 827 [20081). The rules applicable to the representation a child able to all attorneys: that the attorney zealously ad denial the requested relief would be in the child s Steven B., 6 NY3d $88 [2006J;Diarnond v ( zaban v Czahan, 24 AD3d 547 [2005]; cf Matter for the child with a reasonable opportunity to and that the attorney consult with and advise the child, consistent with the child s capacities, in as ing to adjourn the hearing to provide the attorney child s mother or father, or other interested party. ceeding should be accorded the same reasonable opportunity to appear and present evidence and ar guments on behalf the child as is accorded the Court improvidently exercised its discretion in fail vocate the child s position; that the attorney have a thorough knowledge the child s circumstances; pointed to represent a child in a Family Court pro Under the circumstances this case, the Family present additional witnesses (see Matter 1352 certaining the child s position (see22 NYCRR 7.2 olillo, Chambers and Hall, JJ., concur. END Of DOCUMENT The parties remaining contentions either are not light our determination. Spolzino, J.P., Angi WL N.Y. Slip Op before a different judicial ficer; and given the in toward the court, the Family Court may consider properly before this Court or need not be reached in father s modification petition. Upon remittal, the Slip Op , 886 N.Y.S.2d N.Y. Slip 0p , 886 N.Y.S.2d WL N.Y. 65 A.D.3d 1350, 886 N.Y.S.2d WL NY,2009. Matter Krieger v Krieger Court, Nassau County, for a new hearing on the child, and the attorney s confrontational approach for the child or continue the representation. Copr. (c) 2014, Secretary State, State New York Accordingly, we remit the matter to the Family hearing on the father s petition shall be conducted temperate remarks made by the attorney for the whether it is appropriate to appoint a new attorney Page 15 67

27 Page Westlaw. 273 A.D.2d A.D.2d 753 (Cite as: 273 A.D.2d 753, 710 N.Y.S.2d 149) U Matter Carballeira v Shumway 273 A.D.2d 753, 710 N.Y.S.2d 149 N.Y.A.D., A.D.2d 753, 710 N.Y.S.2d 149, 2000 WL , 2000 N.Y. Slip Op In the Matter Catherine Carballeira, Appellant, V. Loren Shumway, Respondent. Supreme Court, Appellate Division, Third Depart ment, New York (June 29, 2000) CITE TITLE AS: Matter Carballeira v Shumway Rose, J. Appeal from an order the Family Court Ulster County (Mizel, J.), entered April 27, 1999, which, inter alia, dismissed petitioner s application, in a proceeding pursuant to family Court Act article 6, for modification a prior custody order. The parties to this proceeding were married in 1986 and are the parents one child, a son, born in After marital difficulties arose, the parties separated in 1990 and, following a lengthy and vig orously contested trial, were divorced in *754 The judgment divorce granted the parties joint custody their son with equally shared physical custody. Thereafter respondent remarried and the parties animosity steadily increased until petitioner commenced this proceeding in March 1997 seeking sole custody the child. After appointing a Law Guardian and conducting pretrial proceedings, Family Court conducted an evidentiaiy hearing spanning 10 days over the period from October 1997 to June During the course the hear ing, respondent also requested an award sole cus tody. In a well-reasoned decision, Family Court de termined that continuation joint custody was in appropriate because the parties could not cooperate in raising their son, and it awarded sole custody and Page 1 decision-making authority to respondent. It also granted petitioner visitation and a consulting role in major educational and medical decisions concern ing the child. Petitioner now appeals. For purposes this appeal, petitioner does not dis pute that Family Court properly determined that joint custody was inappropriate due to the acrimo nious relationship between the parties (see, Brai man v Brathian, 44 NY2d 584, ). Nor does petitioner directly contest the merits Family Court s determination based on the record before it. Rather, petitioner contends that Family Court s de cision should be reversed and a new hearing held because the Law Guardian failed to adequately rep resent the parties child during the proceeding: Spe cifically, petitioner alleges that the Law Guardian s conduct was improper because he advocated a posi tion contrary to the expressed wishes his client, held a bias against petitioner, revealed his client s confidences to third parties and failed to call an es sential 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 a Law Guardian in a custody proceeding. While conceding that a Law Guardian would be justified in substituting his or her own judgment what is in the best interest a very young child, petitioner contends that where, as here, the represented child is old enough to articu late 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 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 this case. The Family Court Act establishes a system law guardians for minors who ten require the assist ance 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 l0 11/7/2014

28 Ic TT, 191 AD2d 132, ). In that role as at the proceedings (see, Id., at ;Matter Jam SE., 249 AD2d 603) and must take an active role in child (Family Ct Act 242; see, Matte, Jamie foremost, the Law Guardian is the attorney for the (Cite as: 273 A.D.2d 753, 710 N.Y.S.2d 149) 273 A.D.2d A.D.2d 753 Page 2 with his mother was acknowledged by the Law we note that the child had his 11th birthday during a disposition at odds with the child s preference, Court. In evaluating the Law Guardian s advocacy Guardian and repeatedly communicated to Family 11/7/2014 It 64 fordhain L Rev 1399 [1996]; Isaacs, The Role child s interest, even if that position is contrary to (see, Matter Burr v Emmett, 249 AD2d 614, Family Court, 12 Buff L Rev 501, [1963]). Guardian may properly attempt to persuade the troducing evidence, presenting a witness, crossexamining all other witnesses, participating in the 173). Depending on the circumstances, a Law It is helpful to a resolution that conflict to note NY2U 167, 173). While not determinative, the for Deterininmg the Role Counsel for C hildren. weighing this factor, the court must consider the influence having been exerted on the child (id., at see, Marquez v Presbyterian Hosp., 159 Misc 2d child s expressed preference is some indication ians sometimes face a conflict in such advocacy ( Misc 2d 387, 390;see, Matter Dewey S., 175 Here, the Law Guardian took an active role by in AD2d 920, 921). an s independent judgment, would best promote the in the child s best interest may diverge, Law Guard the result desired by the child and the result that is 617, ;Multer Scott L. v Bruce IV., 134 the Lawyer in Representing Minors in the New age and maturity the child and the potential for the wishes the child (Matter Amkia P., ). Also, despite the Law Guardian s advocacy ent strong preference the parties child to live ted responsibility to represent the child s wishes as well as to advocate the child s best interest. Because Misc 2d 240, ; Guggenheim, A Paradigm torney, the Law Guardian has the statutorily direc that the child s preference is just one factor the trial court will consider (see, Eschbcwh v Eschhach, 56 what is in the child s best interests. Of course, in court to adopt a position which, in the Law Guardi Lincoln hearing and submitting a closing argument that custody be awarded to respondent, the consist appointed *756 by Family Court opined that the mature than average and could be easily manipu discipline at respondent s home and the lack gathering evidence (see, Matter Ape!, 96 Misc favor one the parents, because I believe my reasons for his preference other than his dislike she exerts influence on his thoughts concerning lated by adults. The record further indicates that the sessive-compulsive Disorder and Attention Deficit gical disorders including Tourettes Syndrome, Ob child may be blinded by his love for petitioner, that was impermissibly biased against her. A Law 2d 839, ). On the other hand, Law Guardi the case has progressed, I have become biased in ans are not neutral automatons. After an appropriate Here, in responding to a request for his removal the Law Guardian stated: And yes, I am biased in this thing. And I think it s no secret, here, that as lieved to be in his client s best interest. ter Amkia P., supra, at 38$). Under these circum rules and discipline at petitioner s home (see, Mat stances, we find that the Law Guardian did not act 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 Cons Laws NY, Book 29A, Family Ct Act 241, made by petitioner on the ninth day the hearing, at ). testified that the child suffers from several neurolo Hyperactivity Disorder. The neutral psychologist Petitioner also complains that the Law Guardian the course the hearing. Significantly, petitioner child was certainly intelligent but somewhat less custody, and that he did not articulate objective improperly by advocating a position that he be Guardian should not have a particular position or decision in mind at the outset the case before the (Besharov, Practice Commentaries, McKinney s Page 18 67

29 Guardian intended to communicate that after being (Cite as: 273 A.D.2d 753, 710 N.Y.S.2d 149) the issues. Rather, the record shows that the Law at the hearing. This contention is also without mer- it. the inflammatory term bias was inopportune, client s best interests are best served there. The use 273 A.D.2d A.D.2d 753 as it implied a personal and unreasoned prejudging tial that her relationship with the child be examined custody and contends that it was absolutely essen giver the child if respondent was awarded sole Page 3. 0&pridia /7/ considered opinion as to the best interest the their wards (see, Matter *757 Angel/na AA., 2 11 consent to the revelation confidences by the at spondent about a suicide threat made by the child. characterizes the wife as the likely primary care- an actual bias against petitioner. Thus, Family the Law Guardian s representation for his failure to in the course the hearing, we find no evidence trial and formulated his opinion both parties only Bentley v Bentley, 86 AD2d ) and generally the representation (see, Code Pressional Re Law Guardian had not met respondent before the There was no evidence that the Law Guardian held child seems a natural result by this stage the pro Court properly refused to remove the Law Guardian Guardians have an attorney-client relationship with Finally, petitioner challenges the effectiveness Matter Angelina AA., supra, at 953). Here, the sional opinion concerning the proper disposition any personal prejudice against petitioner. Also, a when petitioner applied for such relief. AD2d 951, 953,lv denied$5 NY2d $0$;Matter 0/ may not reveal confidences the client concerning DR [ci [1] [22 NYCRR (c) (1)]; child consented to the Law Guardian telling re call respondent s wife as a witness. Having alleged that respondent yielded much the care and dis cipline the parties child to his wife, petitioner exposed to the evidence, he had formed a pres custody and thus had a preference for respondent. ceeding (see, Matter Apel, supra, at $43). As the Nor did the Law Guardian s actions constitute an improper disclosure a client confidence. Law sponsibility DR [b] [22 NYCRR (b)j). However, clients, even child clients, may torney (see, Code Pressional Responsibility Therefore, the Law Guardian did not breach a client confidence or violate any ethical rule. have been permitted to impeach her own witness ( ness. Crew III, J. P., Graffeo, Mugglin and Lahtinen, JJ., Copr. (c) 2014, Secretary State, State New York END Of DOCUMENT respondent s wife precludes the present claim failure to take any steps to present the testimony how Family Court might have ruled, petitioner s as a hostile witness (see, Prince, Richardson on seq. [Farrell 11th ed]), she could have requested no pressional duty in failing to call her as a wit Slip Op , 710 N.Y.S.2d WL N.Y. Slip Op tions and find them to be without merit. We have considered petitioner s remaining conten see, Prince, Richardson on Evidence et. to do so. Accordingly, the Law Guardian breached 273 A.D.2d 753, 710 N.Y.S.2d WL Ordered that the order is affirmed, without costs. Matter Carballeira v Shumway concur. testif. While it is likely that petitioner would not cessary witness, petitioner should have called her to Family Court to allow her to treat respondent s wife Evidence [Farrell 11th edj). Regardless If petitioner believed respondent s wife to be a ne prejudice flowing from the Law Guardian s failure N.Y.A.D., N.Y. Slip Op , 710 N.Y.S.2d WL N.Y. Page 19 67

30 Page West[aw 4$ A.D.3d A.D.3d 1202 (Cite as: 48 A.D.3d 1202, 850 N.Y.S.2d 765) N Kristi L.T. v Andrew R.V. Matter 48 A.D.3d 1202, 850 N.Y.S.2d 765 NY,2008. Page 1 jail child had expressed positive feelings about all members both parents households, had friends in both communities and was doing well in school at time hearing. 4$ A.D.3d 1202, $50 N.Y.S.2d 765, 2008 WL , 2008 N.Y. Slip Op In the Matter Kristi LT., Respondent V Andrew R.V., Appellant. Supreme Court, Appellate Division, Fourth Depart.. ment, New York February 1,2008 CITE TITLE AS: Matter R.V. Kristi 1203 HEADNOTE Parent, Child and Family Custody LI. half v Andrew Family Court erred in determining that change primary physical custody to mother was in child s best interests although mother had completed her jail sentence and mandatory programs, had stopped drinking, was living happily with man and his two children, and was engaged to be married to that man, it was not best interests child to change her primary physical residence both homes fered suitable environment and both parents could provide parental guidance; there was nothing in cord that supported differentiating between parents with respect to emotional and intellectual ment; father s salary was modest, but was more than three times that mother; mother was financially dependent on her fiancé, whose income was more than double that father; mother had given no thought to how she would support child if something were to happen to her fiancé or to their relationship; father was more fit parent; child had lived with each parent approximately her life, and she had had regular visitation with other parent except during period in which mother was in re develop William M. Borrill, New Hartford, for respondent-ap pellant. Richard N. Bach, Utica, for petitioner-respondent. Susan B. Man-is, Law Guardian, Manlius, for Jocelyn R.V. Appeal from an order the Family Court, Oneida County (Randal B. CaIdwell, J.), entered February 27, 2007 in a proceeding pursuant to Family Court Act article 6. The order, among other things, fied a prior custody order. modi It is hereby ordered that the order so appealed from is unanimously reversed in the exercise tion without costs and the petition is denied. discre Memorandum: Respondent father appeals from an order entered in February 2007 that granted the mother s petition to modify a prior order by ing the mother primary physical custody the parties daughter, who was born in December At least two other judges had previously entered custody orders in the matter. In our view, Family Court improvidently exercised its discretion in termining that a change primary physical custody was in the child s best interests. award de 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 a prior custody order and was permitted to move with the child and her ents to Connecticut, with monthly visitation to the father. In August 2004 the mother was convicted driving while intoxicated in Connecticut and ceived a four-month jail sentence because her history such charges. The parties arranged for the father to take physical custody the child at par re http ://web2.westlaw.com/print/printstream.aspx?destination=atp&vr=2.0&pridia /7/2014

31 rangement and spech ing the terms visitation to tody. A Supreme Court order continuing that ar custody and giving the father primary physical cus to a stipulation in Supreme Court continuing joint the end October 2004, and the parties entered in the child. the evidence presented at the hearing established with respect to the five factors set forth in Maher, arrangement has been in effect (Id. at 989). Kere, parents, and the length time the present custody., the relative fitness the respective (Cite as: 48 A.D.3d 1202, 850 N.Y.S.2d 765) 48 A.D.3d A.D.3d 1202 Page 2 llhttp://web2.west1aw.com/print/printstream.aspx?destinationatp&vfr2.0&pridia /7/2014 In granting the mother s petition, the court con pending determination this appeal or until December 31, 2007, whichever occurred first granting the petition following three days decision in January 2007 and an order in February testimony in November **2 2006, and a justice stayed enforcement the February 2007 order residence was an improvident exercise discre- tion. physical custody is warranted are the quality v Maher (1 AD3U 987, 989 [2003]). Although we factors set forth in our decision in A Iatier Maher had completed her jail sentence and mandatory pro grams, had stopped drinking, was living happily with a man and his two children, and was engaged that the court s determination that it was in the best sider in determining whether a change primary As we wrote in Maher, among the factors to con in the best interests the child, relying on the five physical custody the child. Family Court issued a cluded that there had been a change circum stances and that a change in custody was warranted change in circumstances inasmuch as the mother interests the child to change her primary physical mother s petition in July 2006 seeking primary to be married to that man in July 2007, we conclude cial status and ability each parent to provide for ability each parent to provide for the child s emo. tional and intellectual development ber The father has had primary physical cus *1204 At issue in this appeal is the order granting the agree with the court that there was a significant the home environment and the parental guidance the mother was entered at the beginning Septem tody the child since the end October this Court reinstated the September 2005 order and the custodial parent provides for the child..., the.., the finan tion and work habits were all positive, and her so cial development, motor skills, knowledge per sonal information, and math and language skills ence further established that the child loves both holds. With respect to the first factor set forth in Maher, er is financially dependent on her fiancé, whose net than double that the father. The mother admitted was convicted that crime in Connecticut. She the financial ability each parent to provide for the child. The father s salary is modest, but it is with driving while intoxicated several times and is not an alcoholic, although she has been charged the respective parents, the mother insists that she we note that both homes fer a suitable environ With respect to the fourth factor, the relative fitness parents, enjoys visitation with her mother, and is guidance. With respect to the second factor, there is intellectual development. There is, however, a marked difference with respect to the third factor, were all rated competently developed. The evid between the parents with respect to emotional and future. Ijust think now. thought to how she would support the child if 10 weeks school her attitude, behavior, participa the time the hearing, the child was attending at the hearing, however, that she had given no his girlfriend s daughter, and the subject child. At whom he intends to many, and with their daughter, ment and both parents *1205 can provide parental nothing in the record that supports differentiating more than three times that the mother. The moth income as owner a construction business is more that the father had been living with his girlfriend, kindergarten and school reports showed that after comfortable with the other members both house something were to happen to her fiancé or to their relationship. She stated, I never thought about the Page 22 67

32 it the way I only know how to do things. The that he should have been reappointed. last drank alcohol in October She attended some Alcoholics Anonymous meetings but did not my own dealing, doing things my own way, doing prior Law Guardian was available, and we conclude testified that she drinks like everybody else but (Cite as: 48 A.D.3d 1202, 850 N.Y.S.2d 765) 4$ A.D.3d 1202 like them, concluding that 1 do much better f on Ct Act 249 [b]). The record establishes that the and appropriate, appoint the same law guardian who has previously represented the child (Family guardian the court shall, to the extent practicable 48 A.D.3d 1202 Page /7/ recognized, however, that in appointing a law the mother objected to his appointment. The court judges. The same Law Guardian was appointed for appointed by Family Court in this matter because the child in the first two matters but was not re have had proceedings before at least three different We note that the record establishes that the parties the child would be served by a change in her deny the petition. cannot agree with the court that the best interests ercise our discretion, we reverse the order and primary physical *1206 residence. Thus, in the ex ings about all the members both parents house ing well in school at the time the hearing, we Based on our analysis the five factors in Maher, and given that the child has expressed positive feel holds, has friends in both communities and was do life, and she has had regular visitation with the oth end October 2004, while the mother had primary lived with each parent approximately half her present custody arrangement has been in effect. The record establishes that the father is the more fit par mother was in jail. has a criminal record, and we thus conclude that the until the end October Thus, the child has in his vehicle. Neither the father nor his girlfriend protection and possession drug paraphernalia. ent.**3 father has had primary physical custody since the physical custody from approximately March 2001 and that he was convicted violating an order He further testified that the drug charge stemmed from an employee s having left drug paraphernalia The fifth factor concerns the length time the er parent except during the period in which the not in issue. Present Hurlbutt, J,P., Martoche, END Of DOCUMENT Slip Op , $50 N.Y.S.2d $ WL $ N.Y. Slip Op $ A.D.3d 1202, $50 N.Y.S.2d WL NY,2008. Matter Kristi L.T. v Andrew R.V. Copr. (c) 2014, Secretary State, State New York Smith, Peradotto and Pine, JJ. spect to relocation because in our view relocation is arising from conduct involving breach the peace, $ N.Y. Slip up , 850 N.Y.S.2d $ WL $ N.Y. We do not address the parties contentions with re mothers fiancé testified that he has two convictions Page 23 67

33 Page West[aw. 269 A.D.2d A.D.2d 82 (Cite as: 269 A.D.2d 82, 711 N.Y.S.2d 663) C Davis v Davis 269 AD.2d 82, 711 N.Y.S.2d 663 N.Y.A.D., A.D.2d 82, 711 N.Y.S.2d 663, 2000 WL , 2000 N.Y. Slip op Michael Davis, Respondent, V. Michele Davis, Appellant. Supreme Court, Appellate Division, Fourth Depart ment, New York Page 1 parents is indelibly cast, either actually or ostens ibly, as partial to the parent who hired him or her. Both the best interests the children and principles fundamental fairness dictate that such practice not be countenanced. Accordingly, the order award ing sole custody to plaintiff should be reversed, and the mailer remitted to a different Supreme Court Justice for the appointment a new Law Guardian and for further proceedings on the custody issue. TOTAL CLIENT SERVICE LIBRARY REFER ENCES Am Jur2d, Guardian and Ward, 21. July 7, 2000 CITE TITLE AS: Davis v Davis SUMMARY Appeal from an order the Supreme Court (Peter J. Notaro, J.), entered August 26, 1999 in Erie County, which, inter alia, modified the parties ex isting joint custody arrangement by awarding sole custody to plaintiff. HEADNOTE Parent, Child and Family Custody Disqualification Law Guardian for Accepting Retainer Fee from Parent In a proceeding to modify the parties existing joint custody arrangement, Supreme Court, which awar ded sole custody to plaintiff father, erred in refus ing to remove the Law Guardian who moved to modify the shared custody arrangement on behalf the parties children after accepting a retainer fee from plaintiff to represent the children. Under these circumstances, the Law Guardian is disquali fied from so serving by an inherent conflict in terest. Plaintiffs retention and payment the Law Guardian created an unacceptable actual or ostens ible bias in favor plaintiff. A Law Guardian who has been retained and paid by one the contesting Carmody-Wait 2d, Child Custody and Visitation in Matrimonial Actions 1 l8a:54. NY Jur2d, Domestic Relations, 1222, 1229, ANNOTATION REFERENCES See ALR Index under Custody and Support Chil dren; Guardian and Ward. APPEARANCES OF COUNSEL Kadish & Fiordaliso, Buffalo (Keith Irwin Kadish counsel), Lmv Guardian. Sharon A. Osgood, Buffalo, for appellant. Siegel, Kelleher & Kahn, Buffalo (Kenneth A. Otena counsel), for respondent.*83 OPINION OF THE COURT Hurlbutt, J. At issue before us on this appeal is whether Su preme Court erred in refusing to remove a Law Guardian who moved on behalf the parties chil dren to modify the existing joint custody arrange ment. The Law Guardian sought an award sole custody to plaintiff father, who retained and paid for the services the Law Guardian. We conclude that the Law Guardian is disqualified from so serving by an inherent conflict interest. Thus, the order awarding plaintiff sole custody should be re http ://web2.westlaw.com!print/printstream.aspx?destination=atp&vr=2 0&prid=ia /7/20 14

34 newal, the cross motion granted in part, the Law Guardian removed, and the matter remitted to a dif ferent Supreme Court Justice for the appointment motion and cross motion for custody. versed, the motion to renew granted, and, upon re being compensated. He further asserted, I have a new Law Guardian and further proceedings on the dren, and it was unfair that he should do so without provide services and a needed outlet for my chil the Winter 1997/98 as he was continuing to (Cite as: 269 A.D.2d 82, 711 N.Y.S.2d 663) 269 A.D.2d 82 to Mr. Kadish in the amount $1, during [y]our Deponent freely admits to sending a check Page &prid=ia /7/ custody[ asserting in a supporting affidavit that It is undisputed that plaintiff contacted Kadish in ing the previously ordered shared custody schedule. dren in connection with that motion. The parties re The stipulation was incorporated into an order, Plaintiff subsequently moved to modify the shared dren, born January 18, 1983, and April 17, the fall 1997 and informed him that the children he was biased in favor plaintiff. Plaintiff sub $1,500 on March 18, 1998, and a retainer agree Kadish sought and obtained an order, dated August move Kadish as Law Guardian on the ground that represent the children. Plaintiff paid Kadish Defendant cross-moved for sole custody and to re vious postjudgment modification application, sole custody for the Plaintiff. Kadish did not dis to represent the children. 11, 1998, directing defendant to show cause why an plaintiff that he would require a $1500 retainer to providing, inter alia, that the parties would share custody and have equal time with their two chil custody schedule and the court appointed attorney solved plaintiffs motion by a stipulation reschedul granted June 5, 1997, that modified the judgment speaking with the children, Kadish informed order should be not be made, inter a/ia, modifying custody from joint legal and physical custody to sequently moved on his own behalf for *84 sole That judgment incorporated a stipulation were divorced by judgment entered December 13, Keith I. Kadish, Esq. as Law Guardian for the chil divorce accordingly. ment was signed on May 19, 199$. By affidavit re citing his appointment as Law Guardian in the pre close in his affidavit that plaintiff had retained him The underlying facts are as follows. The parties no longer wished to reside with defendant. After FN* Because both plaintiff and defendant do not address the apparent absence by Kadish (cf, Btaztuelt v Blauvelt, 219 are the subject family court proceedings AD2d 694). denied that motion and, following a plenary hear court further directed that plaintiff and defendant denied that part defendant s cross motion seeking removal Kadish, we conclude that the court should have granted that relief upon renewal the ducting the hearing. Pursuant to Family Court Act 241, minors who to Kadish in anticipation trial. After plaintiff In October 199$ plaintiff paid an additional $1,500 tion with the order to show cause obtained Guardian s legal fees. cross motion, removing Kadish as Law Guardian ing, the court awarded plaintiff sole custody. The an. The motion was actually one to renew because retention and payment Kadish, defendant moved arrangement from joint to sole custody, we subsequently sought to change the custody either jurisdiction or standing in connec testified at a deposition concerning the facts his unsuccessfully to reargue that part her cross it sought removal Kadish as Law Guardian. it was based upon newly discovered evidence (see, the court denied defendant s cross motion insar as each pay half the unpaid balance the Law Even assuming, arguendo, that the court properly than sending him a fax or two with respect to cer motion seeking removal Kadish as Law Guardi Foley v Roche, 6$ AD2d 558, ). The court had minimal if any contact with Mr. Kadish other tain incidents. By order dated September 29, 199$, and appointing a new Law Guardian before con 269 A.D.2d 82 Page 2

35 269 A.D.2d 82 able to a practical realization due process law one the contesting parents is indelibly cast, either should be represented by counsel their own choosing or by law guardians. This declaration is based on a finding that counsel is ten indispens A Law Guardian who has been retained and paid by representation. (Cite as: 269 A.D.2d $2, 711 N.Y.S.2d 663) 269 A.D.2d $2 Page 3 0&prid=1a /7/2014 both, may--and ten does--see the child responding the need for counsel loyal only to the child, behold ment, not answerable to either party for her manner by Hurlbutt, J.*87 en to neither parent, exercising independent judg ings must therefore be represented by a Law Guard J.) cogently observed in Matter Stien v Stien (130 the child s best interests in mind. Either parent, or or herself. The bitterer the contention, the greater badly to the pulling and hauling a custody battle and place the blame on the other, exonerating him The children who are the subject such proceed from either parent (Matter Scott L v Bruce N., Misc 2d ), [ejither parent, or both, may try to persuade the court... that he or she only has 134 Misc 2d 240, 246). As family Court (Kaiser, ian who is absolutely independent any influence Almost invariably, custody proceedings are fiercely contested and involve complex and delicate issues. Accordingly, the order awarding sole custody to granted, and, upon renewal, the cross motion gran further proceedings on the motion and cross motion Order unanimously reversed, on the law, without moved and matter remitted to Supreme Court for further proceedings in accordance with the opinion merits the court s award custody. cross motion granted in part, Law Guardian re for custody. We express no view concerning the Hayes, J. P., Wisner, Scudder and Kehoe, JJ., con costs, motion to renew granted, and, upon renewal, cur. for the appointment a new Law Guardian and matter remitted to a different Supreme Court Justice ted in part, the Law Guardian removed, and the plaintiff should be reversed, the motion to renew chiarelli, 238 AD2U ). as in favor plaintiff.*86 be an abuse discretion (see, Vecchiarelli v Vec 536;Frizzell v frizzell, 177 AD2d 825, $26, n; Matter Church v Church, supra, at 678), and the art VI, 7 [a]; *8sKagen v Kagen, 21 NY2U 532, ings arising from a divorce action (see,ny Const, Ct Act 249 [a]; Matter Farnhain v Farnharn, Law Guardian in connection with custody proceed While appointment a Law Guardian in contested 252 AD2d 675, 677;Matter Church v Church, 238 AD2d 677, 678), it is the preferred practice the same power as that Family Court to appoint a Borkowski v Borkowski, 90 Misc 2d 957, 958). to help protect their interests and to help them ex see, Matter farnhcini v Farnharn, supra, at 677; part establishes a system law guardians for and may be helpful in making reasoned determina tions fact and proper orders disposition. This minors who ten require the assistance counsel press their wishes to the court. Supreme Court has custody proceedings is not mandatory (see,family failure to appoint a Law Guardian has been held to 29, col 3; see generally, Besharov, Practice Com 15, col 6; see also, P. v P., NYU, Nov. 10, 1992, at ing Robert N. v Carol W, NYU, Sept. 30, 1983, at ian created an unacceptable actual or ostensible bi v Faber, 105 AD2d 523, 524,appeal dismissed65 ference will prevent the children s representation NY2d 631.rnot to vacate denied65 NY2d 783, cit dren because the appearance or possibility a plaintiff s retention and payment the Law Guard however, retain counsel for their children or be conflict interest or the likelihood that such inter mentaries, McKinney s Cons Laws NY, Book dren and principles fundamental fairness dictate may be represented by counsel to whom they are may not, from being truly independent (Matter Fargnoli 29A, Family Ct Act 249, at ). Here, actually or ostensibly, as partial to the parent who hired him or her. Both the best interests the chil that such practice not be countenanced. Children merely referred by a parent... come involved in the representation their chil Parents Page 27 67

36 Page West[aw 232 A.D.2d A.D.2d 787 (Cite as: 232 A.D.2d 787, 648 N.Y.S.2d 754) C Matter Colleen CC. 232 A.D.2d 787, 648 N.Y.S.2d 754 N.Y.A.D., A.D.2d 787, 648 N.Y.S.2d 754, 1996 WL In the Matter Neglected. Tioga County Department Social vices, Appellant; Kathleen CC., Respondent. (Proceeding No. 1.) (And Three Other Related Pro ceedings.) In the Matter leged to be Abused and/or Neglected. Tioga County Department DD., Respondent. (Proceeding No. 2.) (And Six Other Related Proceedings.) Supreme Court, Appellate Division, Third Depart ment, New York CITE TITLE AS: Matter Colleen CC., a Child Alleged to be Ser Robert EE., a Child Al Social Services, Appellant; Donald (October 3, 1996) Colleen CC. tions were filed charging Kathleen with neglect her children based upon allegations that she lowed Donald to reside in the home and babysit for the children after she was advised the report *7$$ Donald s sexual abuse Robert. Family Court appointed two Law Guardians to serve as counsel for all seven the children involved in the proceedings. The matter proceeded to a fact-finding hearing at which the evidence consisted primarily Robert s in-court and out--court accounts Donald s sexual abuse, the validation testimony certified social worker Sarah Walsh and the trary testimony Donald s retained psychiatric pert, Ivan Fras, whose testimony interrupted tioner s case in order to accommodate a scheduling problem. At the conclusion petitioner s case, Family Court dismissed the petitions in proceeding No. I upon the ground that petitioner failed to tablish a prima facie case neglect and the tions in proceeding No. 2 based upon Family Court s determination that petitioner had failed to prove its case by a preponderance the evidence. Petitioner appeals. Page 1 al co con ex peti es peti Mercure, J. Appeals (1) in proceeding No. 1, from an order the Family Court Tioga County (Sgueglia, J.), entered June 1, 1995, which dismissed petitioners applications, in four proceedings pursuant to ily Court Act article 10, to adjudicate respondent s children to be neglected, and (2) in proceeding No. 2, from an order said court, entered June 1, 1995, which dismissed petitioner s applications, in seven proceedings pursuant to Family Court Act article 10, to adjudicate respondent s children and four er children to be abused and/or neglected. Fam oth Based upon a report by 14-year-old Robert EE. that his father, respondent Donald DD., had sexually used him for a number years, petitioner initiated seven separate proceedings against Donald pursuant to Family Court Act article 10 alleging his abuse Robert and derivative neglect his two daughters and the four children his cohabitant, ent Kathleen CC. In addition, four separate ab respond peti We agree with petitioner s primary contention on appeal, cogently supported by the current Law Guardian, that the Law Guardians appointed by Family Court failed to provide effective assistance counsel to the children who were the subjects the respective petitions, requiring reversal ily Court s orders and remittal the matter for the appointment new Law Guardians and a new hearing. Fundamentally, Robert and the other dren had a strong interest in obtaining State vention to protect [them] from further abuse [or neglect] (Matter Jarnie TT, 191 AD2d 132, 136). a legal position in direct opposition to that Donald and Kathleen and, in fact, coincidental with petitioner s (see, supra). As such, it was the Law Guardians responsibility to take an active role in insuring that evidence sustaining Robert s tions sexual abuse and supporting a finding that Kathleen failed to provide her children with proper Fam chil inter allega http ://web2.westlaw.coml print/printstream.aspx?destination=atp&vr=2.0&prid=ia /7/2014

37 Page A.D.2d A.D.2d 787 (Cite as: 232 A.D.2d 787, 648 N.Y.S.2d 754) guardianship was fully developed and supported to the fullest extent possible (see, Matte, v Wood, 210 AD2d 741, 743; Matter Jarnie TT., supra, at 137; cf, Matter Michael 210 AD2d 758, ). Pratt ff., At their very best, the Law Guardians provided the children with passive representation. At worst, they were effective allies for respondents. For instance, in his thorough questioning Robert, one the Law Guardians made a point breaking down Robert s direct testimony, raising the possibility that he had been coached by his mother during a recess and effectively impeaching him by exploring prior inconsistent statements, all for the obvious purpose discrediting his allegations abuse. The other Law Guardian declined to examine Robert, stating that his co-counsel had already covered all the areas he wished to explore. Most damning, while ficially taking *7$9 no position on respondents dismissal motions, both Law Guardians expressed doubt in the position espoused by petitioner and questioned whether petitioner had established its case by the requisite standard. Our reading the record as a whole leads us to clude that the children did not receive meaningful representation (see, Matter darnie Ti., supra.) con Although rendered academic by virtue our termination to remit the matter for a new hearing, we note two further serious errors that would selves have required reversal. First, by dismissing the petition against Donald at the conclusion titioner s case on the basis its assessment the preponderance the evidence, Family Court plied the wrong standard. At that stage, the proper inquiry was whether petitioner had made out a prima facie case, thereby shifting the burden to spondents to rebut the evidence parental ility (see, Matter Matter our finding that petitioner had made out a prima facie case, it is clear that Family Court s erroneous determination had the effect depriving petitioner an opportunity to cross-examine respondents, if de them pe ap re culpab Philip Al., 82 NY2d 238, 244; Thetnika V., 205 AD2d 787). Based upon Page 2 they chose to testify, or, if they did not, the benefit the strongest inference against them that the posing evidence permitted (see, Matter Theinika V. supra. at ). Second, the evidence that Kathleen was aware the report against Donald and that she nonetheless allowed him to stay overnight in the home with her four children, and, in fact, allowed him to babysit them, established prima facie that she endangered her children by her failure to exercise a minimum degree care in providing them with proper supervision or anship (see,eamily Ct Act 1012 [t7 [i] [B]; A lutter op guardi Daniel DD., 142 AD2d 750, 751). Accordingly, Family Court erred in dismissing the petition against her. Cardona, P. J., Casey, Spain and Carpinello, JJ., concur. Ordered that the orders are reversed, on the law and the facts, without costs, petitions reinstated and matters remitted to the Family Court Tioga County for further proceedings not inconsistent with this Court s decision. Copr. (c) 2014, Secretary N.Y.A.D., Matter (Kathleen CC.) Colleen CC. 232 A.D.2d 787, 648 N.Y.S.2d WL , 648 N.Y.S.2d WL END OF DOCUMENT State, State New York 20 http ://web2.west1aw.coprint/printstream.aspx?destinationatp&vr 2.0&pridia /7/2014

38 Page West[aw 297 A.D.2d 32$ 297 A.D.2d 32$ (Cite as: 297 A.D.2d 328, 746 N.Y.S.2d 313) C Corigliano v Corigliano 297 A.D.2d 32$, 746 N.Y.S.2d 313 N.Y.A.D., A.D.2d 32$, 746 N.Y.S.2d 313, 2002 WL , 2002 N.Y. Slip op. Dominick Corigliano, Appellant, V. Rosa M. Corigliano, Respondent. Supreme Court, Appellate Division, Second De partment, New York (August 19, 2002) CITE TITLE AS: Corigliano v Corigliano In a matrimonial action in which the parties were divorced by judgment entered July 16, 1998, the plaintiff father appeals from so much an order the Supreme Court, Westchester County (Shapiro, J.), entered March 2, 2001, as granted the defendant mother s motion to modify an order the family Court, Westchester County (Cooney, J.), entered June 2, 1999, to remove the appointed case ager, and denied those branches his cross tion which were to modify that order by awarding him custody the parties eldest child and to point a law guardian to represent that child ately from his siblings. man mo ap separ Ordered that the order is modified by deleting the provisions *329 there denying those branches the cross motion which were to modify the order the Family Court, Westchester County, entered June 2, 1999, by awarding custody 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 directing an evidentiary hearing with respect to that branch the cross motion which was to modify the prior order the Family Court, Westchester County, entered June 2, 1999, and (2) appointing a law guardian to represent the eldest child separately (I) Page 1 from his siblings; as so modified, the order is firmed insar as appealed from, without costs or disbursements, and the matter is remitted to preme Court, Westchester County, for further ceedings consistent herewith. af Su pro A parent who seeks a change custody is not matically entitled to a hearing but must make some evidentiary showing sufficient to warrant a hearing (see Matter Coutsoukis v Sarnora, 265 AD2d 482, 483;Teuschjer v Teuschter, 242 AD2d 289, 290;Aviatter change custody should be made only if the ity the circumstances warrants a modification ( see Friedenvitzer v friedeni itzer, 55 NY2d 89, 95-96). auto Alit/er v Lee, 225 AD2U ). A total The plaintiff father alleges that the defendant er now works full time in Connecticut and attends college three nights a week. He further alleges that the parties eldest child lives with his paternal grandparents during the school week and has peatedly expressed a desire to reside with him. In view these allegations, an evidentiary hearing with respect to the branch the father s cross tion which was, inter alia, to award custody the subject child to him, is warranted. moth re mo The Supreme Court also erred in denying that branch 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 the proceeding, without making an priate inquiry, the potential conflict interest in the law guardian s continued representation the subject child warrants the appointment an pendent law guardian for the subject child ter v Shunni aj, 273 AD2d 753;Maticr Rosenberg v Rosenberg, 261 AD2U 623, 624). Carhalleira appro inde (cf Mat The appellant s remaining contention is without http ://web2.westlaw.com!print/printstream.aspx?destination=atp&vr=2.0&prid=ia /7/2014

39 merit. concur. (Cite as: 297 A.D.2d 328, 746 N.Y.S.2d 313) 297 A.D.2d A.D.2d 328 Page 2 Santucci, J.P., H. Miller, Schmidt and Cozier, JJ., 0&prid=ia /7/ END Of DOCUMENT WL N.Y. Slip Op Slip Op , 746 N.Y.S.2U N.Y.S.2d WL N.Y. 297 A.D.2d 328, 746 N.Y.S.2d WL N.Y. Slip 0p , 746 N.Y.A.D.,2002. Corigliano v Corigliano Copr. (c) 2014, Secretary State, State New York Page 34 67

40 281 A.D.2d 969, 722 N.Y.S.2d 323 Gary D.B. v Elizabeth C.B. C closed his law fice in downtown Buffalo and began to practice law from his home. (Cite as: 281 A.D.2d 969, 722 N.Y.S.2d 323) 281 A.D.2d A.D.2d 969 Page 1 Wt[aw. http ://web2.westlaw.com/print/printstream.aspx?desfination=atp&vr=2.0&prid=ia /7/2014 In order to be available to his children, plaintiff be reviewed by the court after a period one year. October 14, 1983; Erin, born January 3, 1986; ried in 1976 and have four children: Jessica, born the following Memorandum: The parties were mar Supreme Court, Appellate Division, Fourth Depart (March 21, 2001) Order unanimously modified on the law and as V. Gary D. B., Appellant, ment, New York CITE TITLE AS: Gary D.B. v Elizabeth C.B. and drug dependency and, despite efforts at rehabil ment incorporated the stipulation the parties that that the custody and visitation arrangement could itation, continued to drink and abuse controlled June 6, Defendant suffered from alcoholism tection from Family Court. Those orders were ex tained a judgment divorce based upon defend halfway house at that time. The agreement provided tion with the children because she was residing in a and defendant would have only supervised visita ant s cruel and inhuman treatment him. The judg commenced an action for divorce and in 1995 ob , 2001 N.Y. Slip op Elizabeth C. B., Respondent. modified affirmed without costs in accordance with Nicholas, born March 10, 1989; and Austin, born substances during the marriage. In December 1992 custody the children, as well as an order pro tended by consent the parties while defendant continued to struggle with her addictions. Plaintiff 281 A.D.2d 969, 722 N.Y.S.2d 323, 2001 WL N.Y.A.D.,2001. plaintiff obtained an order granting him temporary plaintiff would have sole custody the children failing *970 to give deference to a long-standing Jessica to return to plaintiffs custody at this time. supra, at , quoting friederwitzer V frieder The court stated that it was a de novo custody de the needs the children and that defendant is bet tion that he was an unfit parent, and that the court s the children is not supported by the record. We Every custody determination must focus on the best bility the existing custodial arrangement, wheth upon countervailing circumstances on considera On appeal, plaintiff contends that the court erred in We affirm the order insar as it awarded custody ing arrangement should be changed based only (see, fox v Fox, 177 AD2d 209, 210). [T]he exist Jessica to defendant, however, because the re plaintiffs parenting skills are not adequate to meet lowing a hearing, awarded sole custody the chil had never been entered. The court determined that agree, and modify the order insar as it awarded parties. In February 1999 defendant commenced after the eldest daughter, then age 15, came to live plaintiff. Supreme Court granted the petition fol then to defendant and limited visitation to plaintiff. ter equipped to meet those needs. custody arrangement in the absence a determina custody Erin, Nicholas and Austin to defendant. cord establishes that it is not in the best interests interests the children, and the continuity and sta epiphany, and her visitation rights with the chil termination because an order permanent custody determination that he was not meeting the needs factor to consider in determining their best interests ult having what she described at trial as an dren eventually were expanded by stipulation the this proceeding seeking custody all the children, with defendant after having an argument with er established by agreement or order, is a weighty tion the totatity circumstances (Fox v Fox, In July 1996 defendant stopped drinking as the res Page 36 67

41 between divorced parents merely because fied that she stopped drinking in 1996, she had children should not be shuttled back and forth in danger backsliding. Although defendant testi tablished on a long-term basis, wherever possible; 273 AD2U 818). Custody children should be es witzer, 55 NY2d 89, 95;see also, Salerno v Salerno, (Cite as: 281 A.D.2d 969, 722 N.Y.S.2d 323) 281 A.D.2d A.D.2d 969 Page 2 that she has conquered alcoholism and is no longer present medical evidence to support her testimony We find it significant that defendant failed to http ://web2.westlaw.com/print/printstream.aspx?destination=atp&vr=2.0&prid=ia /7/ the court should not have changed custody in this has adequately provided for the needs the chil the blame for the problems to plaintiff. see, A/anna M v Duncan A I., 204 AD2d 409). Al as a result her alcohol and drug dependencies. court s determination that plaintiffs parenting skills are inadequate to meet the needs the children ant, the record supports the conclusion that plaintiff unfit parent. In that regard, we conclude that the though plaintiff is more strict and demanding than defendant, has a less nurturing parenting style, and 1995 pursuant to the judgment divorce incorpor temporary, the children were in plaintiffs cus Here, although the prior custody orders were styled been shown to be unfit, or perhaps less fit, to con tody from 1992 until 1995 pursuant to those orders, and they have been in plaintiffs sole custody since ating the stipulation the parties. Consequently, dren through the many years when defendant was and neighbors, friends and fellow church members with the issue alcoholism with the children, and have instead blamed each other for their problems. damaged by defendant s alcoholism, which she characterized as a family disease. She further con *971 testified that plaintiff enjoys a good relation ment, at least so long as the custodial parent has not case in the absence evidence that plaintiff was an lacks a sound and substantial basis in the record ( The three younger children are doing well in school ship with the children. The court-appointed psycho The court, however, appeared to attribute most or improvements in moral or psychological adjust changes in marital status, economic circumstances tinue as the proper custodian (Obey v Degling, 37 NY2d 768, 770). expects more from the children than does defend unable to provide any emotional support for them logist concluded that all the children had been cluded that the parties have not dealt effectively against defendant for failing to present testimony conclude, however, that this is one those rare quiring the parties and the children to participate in Although not determinative here, we are compelled an attempt to manipulate the situation to remove ily members. a change custody is applicable only as to the tody Erin, Nicholas and Austin, and that defend ing. able to take Dexedrine with no danger abusing it ant should have visitation with those children as set from her present treating psychiatrist that she is and that she is not in danger resuming her drink forth in the order with reference to plaintiff. We cuts to her wrists. Following that incident, she went with defendant. Jessica, who is now 17 years old, court. We also affirm that portion the order re herself from plaintiffs discipline, made superficial plaintiff and Jessica in abeyance pending their par Mitzner, 209 AD2d 487, 48$-4$9;Fox v Fox, supra, firm that portion the order awarding custody has continued to reside with defendant. Given those v Eschbach, 56 NY2d 167, 172;see also, Mitzner v An adverse inference should have been drawn We conclude that plaintiff should retain sole cus at 213). Jessica, in what a psychologist described as to live with her maternal grandparents and then Defendant also admitted that she continues to take Dexedrine, a drug that she has abused in the past. circumstances, and in view Jessica s age, we af Jessica to defendant and holding visitation between ticipation in counseling and further order the counseling to improve communications among fam in the marriage before beginning to drink again. stopped drinking for a period seven years earlier cases where the breakdown in communication between the parent and the child that would require best interests one several children (Eschbach Page 37 67

42 preferences concerning the parent with whom they wished to live, the Law Guardian moved to with N.Y.A.D., Copr. (c) 2014, Secretary State, State New York after the children began to *972 express different brought to our attention on this appeal. During trial, to address two other troubling issues that are Lawton, JJ. (Cite as: 281 A.D.2d 969, 722 N.Y.S.2d 323) 281 A.D.2d A.D.2d 969 Page 3 0&pridia /7/2014 a.5 Present--Pigott, Jr., P. 1., Pine, Hayes, Scudder and tody Erin, Nicholas and Austin to plaintiff with preme Court, Erie County, Sconiers, J.--Custody.) visitation to defendant as set forth in the order with reference to plaintiff. (Appeal from Order Su We modify the order, therefore, by awarding cus an additional fee to the psychologist $800. By ratio between adult parties and children evaluated. The adult parties were to compensate the expert for that, if it is anticipated that the evaluation may ex ceed the maximum limit, then a supplemental re an order appointing a psychologist to evaluate the a maximum fee $2,000, and further provided court-appointed psychologist. The court had issued pensation. Defendant called the court-appointed psychologist as her witness and, during direct ex plaintiffs motion to strike the testimony the Additionally, the court erred in summarily denying appearances was to be paid proportionately to the testimony. have summarily denied plaintiffs objection to her appearance impropriety (see generally, Davis v ing further order the court, defendant created the 624). Davis, 269 AD2d $2), and the court should not IL fatter Rosenberg v Rosenberg, 261 AD2U 623, Law Guardian articulated a conflict interest (cf, cost, and the children s portion was to be paid by the Law Guardian Program. The order provided for court should have granted that motion because the parties, defendant s parents and the children (see,22 NYCRR 202.] 8). The order provided that the com pensation for the forensic evaluations and any court their own proportionate shares the evaluation quest will be made to the Court for additional com amination, it was revealed that defendant had paid paying the expert additional amounts without seek END OF DOCUMENT WL N.Y. Slip Op Slip Op , 722 N.Y.S.2d N.Y.S.2d WL N.Y N.Y. Slip 0p , A.D.2d 969, 722 N.Y.S.2d WL draw from representing all the children. The Gary D. B. v Elizabeth C. B. Page 38 67

43 227 A.D.2d A.D.2d 315, 642 N.Y.S.2d 685 were properly quashed. Respondent s motion to dis Matter Rebecca B. mony the Law Guardian and the social worker C (Cite as: 227 A.D.2d 315, 642 N.Y.S.2d 685) 227 AD.2d 315 Page 1 tion, and thus, the subpoenas demanding the testi Waw, 11/7/2014 ney work product and material prepared for litiga subject child (see,family Ct Act 241; Matter privilege, or the immunity from disclosure for attor Samuel W, 24 NY2d 196,revd on other grounds worker hired by the Law Guardian (Matter Lenny 183 McA, AD2d 627), implicate the attorney-client Children clearly has an interest in the welfare the denied85 NY2d 80$), as well as with the social Mc,tter Angelina AA.(21 1 AD2d 951, 953,lv child s communications with the Law Guardian ( sub no,n. In re Winship, 397 US 358;Murquez v sioner Social Servs., 15$ Misc 2d $51). The custody (cf, Matter Janet M. M v Commis child sufficient to give it standing to seek a change Presbyterian Hosp., 159 Misc 2d 617), Lawyers for In its dual role as advocate for and guardian the ously affirmed, without costs. worker it hired, and denied respondent s motion to to quash subpoenas served upon it and the social ing to bring it, granted the Law Guardian s motion ceeding, denied respondent s motion to dismiss the Guardian, Lawyers for Children, Inc., lacked stand disqualify the court-appointed psychiatrist, unanim November 8, 1995, which, in a child custody pro proceeding on the ground that the child s Law Sheindlin, J.), entered on or about August 18 and Orders, Family Court, New York County (Judith END OF DOCUMENT (May28, 1996) ment, New York CITE TITLE AS: Matter Rebecca B. Supreme Court, Appellate Division, first Depart In the Matter the Custody Rebecca B., an In fant. Renee B., Respondent; Michael B., Appellant A.D.2d 315, 642 N.Y.S.2d 685, 1996 WL Boncn illa, 71 AD2d 1051,affd49NY2d 982). also properly denied for lack pro (see, Virgo v Copr. (c) 2014, Secretary State, State New York 227 A.D.2d 315, 642 N.Y.S.2d WL Matter (Renee B.--Michael B.) B. (Rebecca) N.Y.A.D., Concur--Sullivan, J. P., Rosenberger, Ellerin and Mazzarelli, JJ*3J6 N.Y.A.D., , 642 N.Y.S.2d WL qualify the court-appointed psychiatrist for bias was Page 40 67

44 211 A.D2d A.D.2d 951, 622 N.Y.S.2d 336 Matter Angelina AA. termination that respondent had abused Angelina ent s contentions, we find that Family Court s de There must be an affirmance. Contrary to respond (Cite as: 211 A.D.2d 951, 622 N.Y.S.2d 336) 211 A.D.2d 951 Page 1 Westtaw htp://web2.westlaw.com/print/printstream.aspx?destinationatp&vr2.0&pr1d 1a /7/2014 Joseph BB., Appellant. Appeal from an order the Family Court Ot and/or neglected. report made by the children s mother. The report children in the custody respondent under the su pervision his wife. 1993, which granted petitioner s application, in a ily Court entered a temporary order placing the to adjudicate respondent s children to be abused lected. The investigation commenced by a hot-line one year. Respondent appeals. Subsequently, Fam sego County (Nydam, J.), entered November 19, geliiia, Joseph and Alice, to be abused and/or neg In October 1992 petitioner commenced this pro January 19, 1995 proceeding pursuant to Family Court Act article 10, County Department Social Services, Respondent; Supreme Court, Appellate Division, Third Depart ment, New York CITE TITLE AS: Matter Angelina AA. cing the children in the custody their mother for the dispositional hearing, an order was entered pla pursuant to court order. Following a fact-finding Alleged to be Abused and/or Neglected. Otsego Peters, J. ceeding to adjudicate respondent s children, An was made almost contemporaneously with respond hearing, Family Court found that respondent had sexually abused Angelina and made a derivative finding neglect concerning Joseph and Alice. At In the Matter Angelina AA. and Others, Children ent s acquisition *952 custody the children will not disturb those findings on appeal unless we NY2d 605). Moreover, as respondent conceded at settled that the sexual abuse one child, standing rivative neglect against the others ( Matter Aman and the prior Law Guardian s written report, we ence as to the identity an abuser is not required tion that Joseph and Alice were neglected. It is well alone, does not establish a prima facie case de accorded to those factual findings made by Family tioner s witnesses than respondent s witnesses and 112). As to respondent s contentions that family 211 A.D.2d 951, 622 N.Y.S.2d 336, 1995 WL AD2U 704, 706). While the testimony the chil 1046 (a) (vi); Matter David DD., 204 AD2d 791; the record (see, Mutter Daniel R. v Noel R., 195 the parties and the pressionals who testified. We find that they lack a sound and substantial basis in find that there was sufficient evidence to support We further find that the statements Angelina Act 1046 (b) (1); Matter Nicole V, 71 NY2d Court gave greater weight to the testimony peti ignored the Law Guardian s oral report, the determ Court which had direct observation and access to were sufficiently corroborated (see,family Ct Act Respondent further argues that there was insuffi the perpetrator. ant issue. It is welt settled that corroborative evid here, as in Matter ]ustina $. (supra), Angelina was consistent in her identification respondent as the fact-finding hearing that the child was sexually by a preponderance the evidence (see,family Ct dren s mother was replete with inconsistencies, we N.Y.A.D., Matter Atena D., 125 AD2d 753,lv denied69 (Matter Justina S., 180 AD2d 642). In any event, and had neglected Joseph and Alice was supported ination the Appellate Division regarding custody note that it is axiomatic that great deference will be Family Court s determination. abused, identity the perpetrator became a relev cient evidence to support Family Court s determina Page 42 67

45 finding. END OF DOCUMENT Here, the record reflects sufficient cause for such da LL., 195 AD2d 70$). However, a respondent s York conduct *953 may be found to demonstrate such an N.Y.A.D.,1995. impaired level judgment as to create a substantial Matter AA. (Angelina) (Joseph BB.) support a derivative finding neglect (supra) , 622 N.Y.S.2d WL risk harm for any child in his care and thereby 211 A.D.2d 951, 622 N.Y.S.2d WL (Cite as: 211 A.D.2d 951, 622 N.Y.S.2d 336) 211 A.D.2d A.D.2d 951 Page 2 http ://web2.westlaw.comlprint/printstream.aspx?destinationatp&vr2.0&prid=1a /7/2014 Copr. (c) 2014, Secretary State, State New Ordered that the order is affirmed, without costs. JJ., concur. Cardona, P. J., Crew III, Casey and Yesawich Jr., its entirety. The order Family Court is, therefore, affirmed in Hanington v Coveney, 62 NY2d 640). then to their mother. Family Court listened to ex sured that respondent have access. Thereafter, the with respondent with his custody to be supervised this portion the appeal is moot (see, A fatter oj order appealed from and has granted respondent temporary custody the children, we conclude that by his wife. Since family Court has modified the Finally, respondent asserts that Family Court ab used its discretion in releasing custody the chil court modified its order and placed the children and, in placing the children with their mother, en tensive argument concerning its dispositional order Law Guardian to testify (see, Matter Karl S., 11$ family Court appropriately refused to permit the an opinion concerning her veracity, we find that ness on the part the child to waive her privilege fsee, Matter Bentley v Bentley, 86 AD2d 926) made at an in-camera interview during which the to testify as to the veracity statements Angelina Law Guardian was present. As Angelina had an at and since the record does not reflect any willing and permit her Law Guardian to testify or express Court erred by refusing to permit the Law Guardian AD2d 1002). Respondent additionally contends that Family torney-client relationship with her Law Guardian Page 43 67

46 50 A.D.3d 837, 855 N.Y.S.2d 658 Cervera v Bressler Dewbury & Associates, P.C., Upper Nyack, N.Y. (Dara McDonald Warren counsel), for respond p. Frank Cervera, Westtown, N.Y., appellant pro Se. (Cite as: 50 A.D.3d 837, 855 N.Y.S.2d 658) 50 A.D.3d $37 50 A.D.3d 837 Page 1 Westlaw. atp&vr=2.0&prith /7/2014 ing as witness against father. Supreme Court, Appellate Division, Second De Visitation April 15, 2008 visitation remained supervised, and telephone con denying father s motion to remove attorney for torney for child included facts which were not part improper, as it amounted to attorney for child act child s well-being father s right to reasonable ac on father s character, was both unpressional and for about 2 1/2 years, based solely on hearsay alleg tion were determined to be unfounded, and her al child; in order to show cause and affirmations, at child, as well as his repeated ad hominum attacks Parent, Child and Family from mother; this behavior on part attorney for record, but which constituted hearsay gleaned CITE TITLE AS: Cervera v Bressler ations mother; mother s allegations molesta that unsupervised visitation would be detrimental to V Frank Cervera, Appellant Conditional unmonitored telephone contact and un supervised visitation between father and child was tact between father and daughter was monitored, legations were, in any event, insufficient to show , 2008 N.Y. Slip op der to show cause brought by attorney for child, cess and visitation was violated court erred in ing to an interim attorney s fee and forensic evalu ing the sixteenth decretal paragraph there denying 50 A.D.3d 837, 855 N.Y.S.2d 65$, 200$ WL NY,200$. Rossanna Bressler, Respondent. partment, New York HEADNOTE restored because no hearing was ever held on or 2001, the plaintiff appeals, as limited by his brief, Court, Westchester County (Lubell, J.), entered itation with the parties child to the trial court, and facts, and in the exercise discretion (a) by delet and unsupervised visitation, (b) by deleting the ecting that a hearing be held to determine the til trial the issues unmonitored telephone contact ing the first, second, third, and fourth decretal para ing conditional unmonitored **2 telephone contact Siegel as the attorney for the child. an award an interim attorney s fee, to modify the denied those branches his motion which were for forensic evaluator s fee, and to remove Joshua D. tion for leave to appeal, and leave to appeal is gran ted (see CPLR 5701 [cj); and it is further, graphs there referring to the trial court those and unsupervised visitation is treated as an applica appeal from so much the order as deferred un divorced by *$3$ judgment dated February 21, September 18, 2007, which, inter alia, referred those branches his motion which were for Unmonitored telephone contact and unsupervised vis apportionment responsibility for payment the Ordered that the order is modified, on the law, the branches the father s motion which were for Unmonitored telephone contact and unsupervised vis In a matrimonial action in which the parties were child. from stated portions an order the Supreme itation and substituting therefor a provision restor eighth and ninth decretal paragraphs there relat Joshua D. Siegel, Hartsdale, N.Y., attorney for the Ordered that on the Court s own motion, the notice ator fees and substituting therefor a provision dir ent. parties relative financial positions, and (c) by delet Page 47 67

47 remove Joshua D. Siegel as attorney for the child branch the plaintiffs motion; as so modified, the order is affirmed insar as appealed from, with noncustodial parent to develop a meaningful, nur (Cite as: 50 A.D.3d 837, 855 N.Y.S.2d 658) ald D. v Lucille 8., 188 AD2U 650 [1992]). for a that branch the plaintiffs motion which was to and substituting therefor a provision granting that parents (Daghir v Daghir, 82 AD2U 191, 193 {1981],affds6 NY2d 938 [1982];see Matter Ger being nurtured and guided by both his natural 50 A.D.3d $37 50 A.D.3d 837 Page /7/ [19$1];see Twersky v Twerskj 103 AD2U 775 unmonitored telephone contact and unsupervised ternate weekends and one weekday per week, and (hereinafter OCFS). Although a hearing on the mo Visitation is a joint right the noncustodial par er has remained supervised since July 28, may direct. open court, the parties entered into a stipulation, forensic report, the appointment a new attorney visitation as the Supreme Court in its discretion later so-ordered by the court, in which they agreed tody with the mother, visitation to the father on al tions by the mother, including one allegation sexual molestation. The sexual molestation allega tion the attorney for the child was scheduled at by the Office Children and family Services as the law guardian for the child, moved by order to In July 2005 the attorney for the child, then known alia, an immediate hearing on the issues tele ing custody their child and the visitation rights proceedings consistent herewith, including, inter phone contact and visitation, without an updated the Supreme Court, Westchester County, for further the noncustodial father. On September 25, 2003, in *839 to joint custody, with primary physical cus the removal certain restrictions on visitation that show cause, signed by the court on July 28, 2005, tion was subsequently determined to be unfounded cord, it never took place, and visitation by the fath ent and the child (Weiss v Weiss, 52 NY2d 170, costs to the appellant, and the matter is remitted to for the child, and the setting such conditions Since the parties divorce in february 2001 they have been involved in constant litigation surround had been imposed temporarily. for supervised visitation, based on various allega least once, for some reason, not apparent in the re [1984]), and the best interests a child lie in his AD2d at 194,affd56 NY2d 938 [19$2J;see Matter 0/ would be detrimental to the child s well-being, a [1999J;see Matter Custer v Stater, 2 AD3d 1227, lished that unsupervised visitation would be detri between father and daughter has been monitored, legations molestation, which were determined by cidents, the details which were disputed by the tion privileges (Twersky v Twersky, 103 AD2d at Here, because no hearing was ever held on the or tion has remained supervised, and telephone contact the record (see Matter Khan v Dolly, 39 AD3U child, signed by the court on July 28, 2005, visita [2007]:Matter Kacheiher v Wasiak, der to show cause brought by the attorney for the 1228 [2003]), and its determination will not be set It is within the sound discretion the court to de 308 AD2d 450, 451 [2003]). Supervised visitation [2004]).**3 *840 AD3d 1022, 1024 [2007];Purcetl v Pztrcell, 5 AD3d is appropriately required only where it is estab 10 AD3U 366 [2004];Matter Levande v Levande, AD2U 404 [1996];Matter Schack v Schack, 98 AD3U 551 [2005];see Rosenberg v Rosenberg, 44 Gerald D. v Lucille S., 18$ AD2d at 650). Absent Graves v Smith, 264 AD2d $44 [1999];Matter noncustodial parent has a right to reasonable visita termine whether visitation should be supervised ( must be frequent and regular (Daghir v Daghir, $2 AD2d $02 [1983]). aside unless it lacks a sound and substantial basis in mental to the child (Matter Gainza v Gainza, 24 OCFS to be unfounded, and stories various in allegations the mother. These consisted the al for about 2 1/2 years, based solely on the hearsay turing relationship with his or her child, visitation extraordinary circumstances, where visitation ;see Matter Brian M v Nancy M., 227 Matter Morgan v Sheevers, 259 AD2d 619, 620 Page 48 67

48 to the child s well-being (Matter Graves v at ). AD3d at 752). Under these circumstances, it is un that unsupervised visitation would be detrimental Cons Law NY, Book 29A, Family Ct Act 241, Smith, 264 AD2U at 845;see Purcell v Purcell, 5 Besharov, Practice Commentaries, McKinney s v Shumwav, 273 AD2d 753, 756 [2000], quoting child s best *841 interest (Matter Carballeira father and, in any event, were insufficient to show opinion about what action, if any, would be in a (Cite as: 50 A.D.3d 837, 855 N.Y.S.2d 658) 50 A.D.3d 837 Page /7/ ney for the child. An [attorney for the child] visit (Matter Rueckert v Reilly, 282 AD2d 60$, ted in two violations the ethical requirements ap the litigation (see 22 NYCRR 7.2 [bj). which was to remove Joshua D. Siegel as the attor ent s confidences and may not become a witness in testii and submit his files and notes as part dis 609 [2001]). erly declined to direct the attorney for the child to without determining the economic realities, in reasonable access and visitation (Matter Schack v Schack, 98 AD2d at 802;see Matter Additionally, the court should not have required the father to pay the cost supervising his visitation cluding his ability to pay and the actual cost each $02), it was especially unfortunate that the Supreme Smith v Motocly-Smith, 307 AD2d 364, 365 [2003]). the child, that the attorney may not disclose a cli much anger, hostility and resentment between the Court permitted the mother to have so much control over visitation and, especially, over telephone con tact between father and daughter. This arrangement covery. To have ruled otherwise would have resul cretion in denying that branch the father s motion children] are not neutral automatons. After an ap expected, that a[n attorney for the child] form an propriate inquiry, it is entirely appropriate, indeed evidence... On the other hand, [attorneys for 1/2 years ago. Moreover, where, as here, there is acceptable to this Court that the hearing in this mat ter has not been held, although ordered more than 2 parties (Matter Schack v Schack, 9$ AD2d at resulted in the violation the father s right to Contrary to the father s contentions, the court prop plicable to all attorneys, including an attorney for However, the court improvidently exercised its dis should not have a particular position or decision in mind at the outset the case before the gathering dren], as advocates, may make their positions known to the court orally or in writing (by way, part the record or making submissions directly to [internal quotation marks and citations omitted]). 2005, and the affirmation in support, as well as in the court ex parte are inappropriate practices ( Weigiher v Weigther, 1 AD3U 786, 789 [2003] Here, in the order to show cause signed July 28, presenting reports containing facts which are not among other methods, briefs or summations), ive arm the court. While [attorneys for the chil cial positions. ney for the child. With regard to attorney s fees and apportionment for a hearing to consider the parties relative finan matter to the Supreme Court, Westchester County, v Cen era, 43 AD3d 849, 850 [2007]), we remit the father, in violation the Rules the Chief Judge ( hominum attacks on the father s character, is both attorney for the child acting as a witness against the should have granted that branch the motion parties have ever been fully considered, or that the pressly reserved to him in [a] prior order (Cetvera in the record that the financial circumstances the attorney for the child, as well as his repeated ad unpressional and improper, as it amounts to the father has ever been afforded an opportunity to challenge the apportionment fees, a right ex the record, but which constituted hearsay gleaned from the mother. This behavior on the part the see 22 NYCRR 7.2 [b]).**4 Accordingly, the court the forensic evaluator s fees, as there is no evidence [An] attorney for the child[ ] [is] not an investigat every affirmation submitted thereafter, the attorney for the child included facts which were not part which was to remove Joshua D. Siegel as the attor 50 A.D.3d $37 Page 3

49 Court, in effect, granted that branch the father s limiting the scope such releases to the contact provide certain releases to the forensic evaluator by dated May 15, 2007, as directed the parties to Contrary to the father s contention, the Supreme motion which was to rescind so much the order (Cite as: 50 A.D.3d 837, 855 N.Y.S.2d 658) 50 A.D.3d A.D.3d 837 Page 4 http ://web2.west1aw.com/print/printstream.aspx?destination=atp&vr2.0&prid=ia /7/2014 END Of DOCUMENT Slip Op , $55 N.Y.S.2d WL N.Y. Slip 0p N.Y.S.2d WL N.Y. 50 A.D.3d 837, 855 N.Y.S.2d WL Cervera v Bressler NY, N.Y. Slip Op , 855 Copr. (c) 2014, Secretary State, State New York Lifson, florio and Dickerson, JJ., concur. ulation dated September 25, Spolzino, J.P., and communication allowed by the so-ordered stip Page 50 67

50 48 A.D.3d 203 Page 1 48 A.D.3d 203, 850 N.Y.S.2d 415 not be repeated. With the parties present, the court C (Cite as: 48 A.D.3d 203, 850 N.Y.S.2d 415) 48 A.D.3d 203 Wt[aw Naomi C. v Russell A. for the Child) by the court is something that should tioning the Law Guardian (now called Attorney 1i7/2014 1;?:, Although the court was warranted in dismissing the petition *204 on its face, we point out that the ques Russell A., respondent pro se. without merit; neither custody nor visitation should evidentiaiy showing (see David W, 158 AD2d at 7). CITE TITLE AS: Naomi C. v Russell A. Bruce A. Young, New York City, for appellant. Sturm, J.), entered on or about August 9, 2007, Parent, Child and family february 5, 200$ Russell A., Respondent. ment, New York Order, family Court, New York County (Helen C. which dismissed, without a hearing and without hbein v Fischbein, 55 AD2d 885 [1977]). However, here because petitioner failed to make the necessary Julia W., 158 AD2U 1, 6 [1990J;Matter f/se be changed without a hearing (see e.g. David W. v to modif, the parties so-ordered stipulation is Petitioner s contention that sufficient grounds exist tody, unanimously affirmed, without costs. V , 2008 N.Y. Slip Op Naomi C., Appellant Supreme Court, Appellate Division, First Depart Custody prejudice, the petition to modify an order cus Family Court was not required to hold a hearing 48 A.D.3d 203, 850 N.Y.S.2d 415, 2008 WL WL N.Y. Slip Op ip Op , 850 N.Y.S.2d $ NY,2008. HEADNOTE ject to the ethical requirements applicable to all an unswom witness, a position in which no attorney hearsay opinion a child in determining the legal portantly, such colloquy makes the Law Guardian tioner s counsel, the court should not consider the cross-examination the Law Guardian by peti Although the court was correct to disallow the sufficiency a pleading in the first place. Most im should be placed. The attorney for the child is sub NY,200$. N.Y.S.2d WL $ N.Y. cur Lippman, p.j., N.Y. Slip Op , 850 4$ A.D.3d 203, 850 N.Y.S.2d $ WL Sweeny, JJ. We have considered 22 NYCRR] 7.2 {bj).**2 a witness in the litigation (Rules Chief Judge [ well the current custody arrangement was working. Copr. (c) 2014, Secretary State, State New York the position the 10-year-old child regarding how asked the Law Guardian, on the record, to discuss lawyers, including but not limited to. ments and find Naomi C. v Russell A. END OF DOCUMENT Gonzalez, Buckley and petitioner s remaining them unavailing. argu Con.. becoming Page 45 67

51 4 A.D.3d 747, 771 N.Y.S.2d 476 $01 [1998]). We note, however, that the court im Matter Cobb v Cobb H obtain counseling and that she willfully violated that order (see Matter Hicks v Russi, 254 AD2d (Cite as: 4 A.D.3d 747, 771 N.Y.S.2d 476) 4A.D.3d747 4A.D.3d 747 Page 1 Westtaw. http ://web2.westlaw.com!print/printstream.aspx?mt2 85&prftHTMLE&vr2.0&destinati... 11/7/2014 3LI an order mandating that she and the parties child be and the same hereby is unanimously affirmed The record establishes that respondent was aware Respondent, who was aware order mandating that she and parties child obtain counseling and february 11, 2004 Civil Contempt Kathy Cobb, Appellant. Supreme Court, Appellate Division, Fourth Department, New York CITE TITLE AS: Matter Cobb v Cobb County (Frank S. Cook, J.), entered September 27, properly found respondent in contempt court. to testify as witness. parte, and court improperly directed Law Guardian prepare and file law guardian report with court ex without costs The order found respondent in contempt V In the Matter James J. Cobb, Respondent It is hereby ordered that the order so appealed from , 2004 N.Y. Slip op Contempt willfully violated order, was properly held in con Appeal from an order the Family Court, Oneida court for willfully violating an order mandating that Memorandum: We conclude that family Court 4 A.D.3d 747, 771 N.Y.S.2d 476, 2004 WL NY,2004. HEADNOTE tempt court improperly directed Law Guardian to respondent and the parties child obtain counseling. ards, vol 2, Standards B-6, B-7 [Nov ). Code Pressional Responsibility DR (c) Copr. (c) 2014, Secretary State, State New York END Of DOCUMENT and the Law, Law Guardian Representation Stand AD2U 608, 609 [20011). Indeed, a law guardian n I [2003];see Matter Rueckert v Reilly, 282 not an investigative arm the court (Weigiher v Weiglher, 1 AD3d 786, 788 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 Guardian to testify as a witness. The Law Guardi appears to have been in direct contravention after *748 undertaking employment in contem obvious that the lawyer ought to be called as a wit fact before the tribunal.... Present Pigott, plated or pending litigation, a lawyer learns or it is ness on a significant issue on behalf the client, (22 NYCRR [c]), which provides that [ijf an s testimony on behalf petitioner in this case inasmuch as a law guardian is the attorney for the Moreover, the court improperly directed the Law , 771 N.Y.S.2U N.Y.S.2d 476 (Mem) WL N.Y. Slip Op , 771 N.Y.S.2d N.Y.S.2d 476 (Mem) WL N.Y. Slip Op. (Mem) WL N.Y. Slip Op. 4 A.D.3d 747, 771 N.Y.S.2d N.Y.S.2U 476 file a law guardian report with the court ex parte, the lawyer shall not serve as an advocate on issues Jr., P.1, Hurlbutt, Scudder, Kehoe and Gorski, JJ. properly directed the Law Guardian to prepare and children. NY,2004. Matter Cobb v Cobb.. and Page 2 2

52 229 A.D.2d 680, 645 N.Y.S.2d 346 Matter Sellen v Wright child (see, Friedenvitzer v Friederwitzer, 55 NY2d in any custody matter is the best interest the C It is beyond cavil that the paramount consideration (Cite as: 229 A.D.2d 680, 645 N.Y.S.2d 346) 229 A.D.2d 680 Wilaw. 229 AD.2d 680 Page /7/2014 on April 2, Jason dictated a change custody and therefore Jason was entered in Onondaga County titioner filed the instant petition alleging that Jason respondent was unwilling and/or unable to meet his declaring petitioner as the biological father FN1 An order fihiation adjudging and granted the petition. Respondent appeals. ing, Family Court determined that the best interest custody pending a hearing. After a hearing at which portunity to present evidence, and a Lincoln hear At all times prior to the commencement the in both parties and Jason s Law Guardian had an op stant proceeding, Jason was in custody respond needs; Family Court granted petitioner temporary was engaged in self-destructive behavior and that had been expanded to include Thursday nights. Pe The parties have a son who was born in l984.f ent; petitioner exercised weekend visitation, which teachers testified that the child was unprepared for Most disturbing, however, is respondent s lack understanding and unwillingness to cope with chologist testified that he conducted a psychologic average intelligence and low self-esteem. The psy chologist further testified that following a second evaluation a year later, Jason talked about having al evaluation Jason which revealed that he had Jason s psychological problems. The school psy and sometimes impossible for them to communicate like during the week when he was with respondent. tioner the child s homework would be complete, un after Jason s regular weekend visitation with peti The record reveals that respondent had been unwill gical development. Jason s fourth and fifth grade with respondent. The teachers further testified that class, was underachieving and that it was difficult ing to participate in Jason s intellectual or psycholo 1995, which granted petitioner s application, in a Appeal fiom an order the Family Court Madison County (Humphreys, J.), entered April 20, ment, New York V. In the Matter Ernest L. Sellen, Jr., Respondent, Supreme Court, Appellate Division, Third Depart (July 11, 1996) CITE TITLE AS: Matter Sellen v Wright 229 A.D.2d 680, 645 N.Y.S.2d 346, 1996 WL Spain, J. for custody Jason Wimer. Court s determination.*6$i N.Y.A.D., Linda W. Wright, Appellant. proceeding pursuant to Family Court Act article 6, supra Matter Irwin v Neyland, 213 AD2d 773). any inquiry the requisite change in circumstances parent s home environment and the child s prospects family Ct Act 652 [a]). The factors included in see, Matter Lizzio v Jackson, 226 AD2d 760; change in circumstances which reflects a real need Matter Williams v Williams, 1 88 AD2d 906;Matter Van Hoesen v Van Hoesen, supra; see also, preexisting custody arrangement, the quality the rangement will only be made upon a showing a Applying those rules law to the instant matter, and any modification a preexisting custody ar for change to ensure the best interest the child ( for the child s intellectual, emotional and psycholo gical development, the length and quality the for the future (see, Matter Lizzio v Jackson, we conclude that the record fully supports Family AD2d 903; Hathaway v Hathaway, 175 AD2d 336) include the parent s fitness and ability to provide 89, 94; Matter Van Hoesen i Van Hoesen, 186 Page 52 67

53 suicidal thoughts. The psychologist expressed im mediate concern and made a genuine effort to con tact respondent, to no avail. The school counselor 270) has been violated. The transcript testified that she attempted to communicate with re in Matter Lincoln v Lincoln (24 NY2d child s right to the confidentiality provided (Cite as: 229 A.D.2d 680, 645 N.Y.S.2d 346) behalf respondent and petitioner. The pendix to each the briefs submitted on 229 A.D.2d A.D.2d 680 Page 2 http ://web2.west1aw.com/print/printsea.aspx?destinationatp&vr2.0&pr1dia /7/2014 3(0 been breached. Parts the transcript have been reproduced and included in the ap in camera Lincoln hearing in this case has FN2 We note that the confidentiality the transcript the Lincoln hearing. also reveals that petitioner had an excellent em dice that resulted from the court s ruling. Upon re view the entire record, we conclude that Family further, we reject respondent s contention that the in camera Lincoln hearing. Respondent has The record reveals that petitioner played the instru This protection is achieved by sealing the transcript Matter Lincoln v Lincoln, 24 NY2d 270,supra,). *682 respective parent/child relationships (see, tents the Lincoln hearing)w2children must be ating in counseling with Jason. mental role in accessing appropriate counseling and tions for Jason, enjoyed a stable family environ contrast, respondent had a spotty employment his alcohol. The testimony indicated that during the short time that he was in the temporary custody spects for a stable future were excellent. mentoring program. The counselor s attempt to communicate with respondent was unsuccessful; ployment history, had made adequate accommoda rangements and had extensive involvement with the petitioner, Jasonts school work improved, as did his Family Court erred by refusing to disclose the con protected from having to openly choose between parents or openly divulging intimate details their failed to address the specifics any harm or preju spondent regarding disturbing notes that Jason had written; the counselor wanted him involved in a however, petitioner was very interested in particip ment and did not have a criminal background. In tory, fered the child dirty and unkept living ar criminal justice system stemming from her abuse overall appearance and attitude, and that his pro Court properly denied respondent access to the Copr. (c) 2014, Secretary State, State New York END Of DOCUMENT JJ., concur. 604). v Schwartz, 144 AD2d 857, 858,tv denie&4 NY2c cord fails to support the kind parental coopera finally, respondent failed to establish and the re 1016). ter LaUd v Belluvia, 151 AD2U 1015, directed otherwise, and we find no direc to an appellate court unless Family Court tion, communication and lack antagonism neces have been sealed and made available only Ordered that the order is affirmed, without costs. Matter Sellen v Wright A.D.2d 680, 645 N.Y.S.2d WL N.Y.A.D., , 645 N.Y.S.2U WL the Lincoln hearing in this case should tion to the contrary in the record (see, Mat saiy to grant joint custody (see, Matter Schwartz Cardona, P. J., Mikoll, Crew Ill and Yesawich Jr., Page 53 67

54 91 AD.3d 652, 936 N.Y.S.2d 265 tion; and it is further, Matter New v Sharma U the child, before a different Judge, and thereafter a (Cite as: 91 A.D.3d 652, 936 N.Y.S.2d 265) 91 A.D.3d A.D.3d 652 Page 1 new determination the petition and the applica Westl.aw. com/print/pñntstream.aspx?destination=atp&vr=2.0&prid=ia /7/2014 :31 Time to Brief Visits at Public Places Hearing torney for the child. for the child to modify the prior order visitation for the child, including an in camera interview with father s petition and the application the attorney the family Court, Nassau County (Eisman, J.), visitation the same court dated January 14, family Court, Nassau County, for a hearing on the In related visitation proceedings pursuant to Family Patricia Miller Latzman, Port Washington, N.Y., at Ordered that the order dated December 7, 2010, is disbursements, and the matter is remitted to the its with the child at public places. in effect, denied his petition to modify a prior order so as to limit the father s parenting time to brief vis Supreme Court, Appellate Division, Second De Visitation Robert S. New, Grapevine, Texas, appellant pro Se. Court Act article 6, the father appeals from an order reversed, on the law and the facts, without costs or V In the Matter Robert S. New, Appellant 89855, 2012 N.Y. Slip op Parent, Child and Family dated December 7, 2010, which, without a hearing, 2010, and granted the application the attorney 91 A.D.3d 652, 936 N.Y.S.2d 265, 2012 WL NY, Emma T. Sharma, Respondent. HEADNOTE Modification Prior Order Limiting Parenting quested that the Court limit the father s parenting time to periods short duration and in a specific location. In an order dated December 7, 2010, the Court had the authority to grant the relief requested However, under the circumstances this case, the interest (Matter Riemma v Cascone, 74 AD3d at the father s petition and granted the application the attorney for the child to modify *653 the prior for the child, based on the father s submissions, re In opposing the father s petition, the attorney Family Court, without a hearing, in effect, denied Family Court erred by, in effect, denying the fath [2007]; see Matter Riernrnc, v Cascone. 74 AD3d and provident determination as to the child[ ] s best 979, [2009]). 1344, 1345 [2010]; Ctair v Fitzgerald, 63 AD3d by the attorney for the child in her opposition to his public places. The father appeals. Contrary to the father s contention, the Family petition (cf Matter ivlyers v Markey, 74 AD3d torney for the child without conducting a full evid entiary hearing. Generally, visitation should be de termined after a full evidentiary hearing to determ however, where the court possesses adequate rel evant information to enable it to make an informed 1082, 1082 [2010]). A hearing is not necessary, PettJrd-Brown v Brawn, 42 AD3d 541, 542 ine the best interests the child (Matter **2 er s petition and granting the application the at limit the father s parenting time to brief visits at partment, New York fy a prior order visitation dated January 14, In October 2010 the father filed a petition to modi 14, 2010, shall remain in effect. the petition and the application, the visitation Ordered that pending the hearing and determination provisions as set forth in the order dated January order visitation dated January 14, 2010, so as to CITE TITLE AS: Matter New v Sharma January 10, 2012 Page 55 67

55 Page A.D.3d A.D.3d 652 (Cite as: 91 A.D.3d 652, 936 N.Y.S.2d 265) Page [internal quotation marks omitted]; see END OF DOCUMENT Matter Perez v Sepulveda, 51 AD3d 673 [20081). Here, the family Court did not possess adequate relevant information to determine that the limitation the father s parenting time to brief visits at public places was in the best interests the child (see Matter Riemma v Cascone, 74 AD3d at 1083; Matter Rivera v Administration Chi1drenc Sen s., 13 AD3d 636, 637 [2004]; Rosenberg v Rosenberg, 60 AD3U 65$ [2009]; Matter v Wasilewski, 51 AD3d 675, 676 [2008]). To the extent that the Family Court relied on the detailed accounts provided by the attorney for the child cerning her conversations with the child, it is propriate for an attorney for the child to present cf for Potente con inap reports containing facts which are not part the record (Ceuvera V Bresster, 50 AD3d 837, 841 [20081, quoting Weigthrr v WeiglhojL r, I AD3d 786, 789 n [2003]; see22 NYCRR 7.2 [b]). Accordingly, the matter must be remitted to the Family Court, Nassau County, for a hearing on the father s petition and the application the attorney for the child, including an in camera interview with the child, and thereafter a new determination the father s petition and the application the attorney for the child. In light certain remarks made by the Family Court Judge, the proceeding should be held before a different Judge. The father s remaining contentions either are without merit or need not be reached in light the foregoing determination. Rivera, J.P., Leventhal, Belen and Roman, JJ., concur. *654 Copr. (c) 2014, Secretary NY,2012. Matter New v Sharma 91 A.D.3d 652, 936 N.Y.S.2d WL N.Y. Slip Op , 936 N.Y.S.2d WL $ N.Y. Slip Op , 936 N.Y.S.2d WL $ N.Y. Slip Op State, State New York http ://web2.westlaw.com/print/printstream.aspx?destination=atp&vr=2.o&prid=ia /7/2014

56 24 A.D.3d 1051, 806 N.Y.S.2d 755 rangement between the parties was first established Matter Graham v Graham parents a daughter born in The custody ar N Petitioner and respondent, now divorced, are the (Cite as: 24 A.D.3d 1051, 806 N.Y.S.2d 755) 24A.D.3d 1051 Page http ://web2.westlaw.com/print/printstream.aspx?destinationatp&vr2.o&pridia /7/ Thomson Reuters. No Claim to Orig. US Coy. Works. plication, in a proceeding pursuant to family Ct Act article 6, to modify a prior order custody. a choice between the conflicting positions argued in December 17, 2004, which granted petitioner s ap Spain, J. Appeal from an order the Family Court lacks evidentiary support. The difficultly in making Schoharie County (Bartlett, III, J.), entered able to conclude that family Court s determination ing facts and divergent testimony that we are un Here, our review the record reveals such compet December 22, 2005 Award joint legal custody to both parties, with primary physical custody to petitioner, was prop ment, New York tain custody, he had *1052 also exhibited irrespons this case. child s attorney, Law Guardian, to file report in 768 [2002]). her animosity toward respondent to interfere with child it was improper for family Court to direct and no allegations were made that her home was also exhibited unacceptable behavior in allowing Todd Graham, Appellant. her responsibility to her child, but she fered V In the Matter Natasha Graham, Respondent , 2005 N.Y. Slip Op Supreme Court, Appellate Division, Third Depart CITE TITLE AS: Matter Graham v Graham Parent, Child and family Custody er although respondent was loving father who had demonstrated willingness to cooperate with courtordered assessments and restrictions in order to re unsafe or that her behavior had negatively impacted 24 A.D.3d 1051, 806 N.Y.S.2d 755, 2005 WL ible behavior during relevant period petitioner NY,2005. HEADNOTE greater degree continuity and stability to child, in circumstances in the form, among other titioner commenced this proceeding seeking to with respondent during the school year with peti Schoharie County. By that order, the child resided various holidays and each the three-day holiday modify that custody arrangement, alleging a change firm.**2 parties, and its findings will be disturbed only if un record (Ailatter Yizar v Smi yer. 299 AD2U 767, Family Court s determination because it is in the best position to evaluate the credibility the changed circumstances, [d]eference is accorded child s best interest (A Iulter Oddy v Oddy, 296 tody arrangement, it was petitioner s burden to ing, family Court granted the petition and awarded tion, a new fact-finding hearing and a Lincoln hear to respondent. On respondent s appeal, we now af use. Following a Family Ct Act 1034 investiga As the proponent for a change in an existing cus spondent moved to New York, was continued early tioner having primary access during the summer, weekends during the school year. In July 2004, pe joint legal custody to both parties, but with primary physical custody to petitioner and the three-day make a showing changed circumstances demon strating a real need for a change to ensure the supported by a sound and substantial basis in the after petitioner moved to Washington, D.C. and re things, respondent s alleged increased alcohol ab school year weekends, summer and holiday access AD2d 616, 617 [2002]). In evaluating the existence in California where the parties then resided and, in 2004 after a trial by order Family Court, 24A.D.3d 1051 Page 1 Westtaw.

57 custody (see*1053 Id. at 76$). Respondent is obvi ments and restrictions in order to retain custody. He ingness to cooperate with court-ordered assess Guardian was careful to characterize his written submission at the end the pro as his this case is reflected by the great reluctance with ously a loving father who has demonstrated a will I AD3d 786, 78$ n [2003]). Notably, the Law report in this case (see Weigiher v Weiglher. which the Law Guardian advocated for a change in ect the child s attorney, the Law Guardian, to file a It was, however, improper for Family Court to dir (Cite as: 24 A.D.3d 1051, 806 N.Y.S.2d 755) 24A.D.3d A.D.3d 1051 Page 2 0&prid=ia /7/ Hairston, 6 AD3d 886, $87 [2004]). lv denied93 NY2d $04 [1999];cf Matter Banks v was, on at least two occasions, placed in the posi ical well-being the child, these instances never Weeden v Weeden, 256 AD2d 831, [1998], On the other hand, although petitioner has also ex on for assistance. moved back to California, as did soon there point becoming incapacitated. Although on these occasions others were present to care for the phys shared the responsibility parenting the child, had after respondent s father and his wife, who had spondent without any local extended family to rely sions, respondent had become intoxicated to the tion attempting to revive or care for her inebri child. Moreover, no allegations have been made vale v Brown. 271 AD2d 717, 719 [2000];A fatter oj tody arrangement (see Matter Hrusovsky v Ben jarnin, 274 AD2d 674, 676 [2000];AJatter Cacca change in circumstances existed and that it was in a greater degree continuity and stability to the by her resistance to paying child support, she fers Family Court. Specifically, on at least four occa theless negatively impacted the child in that she ated father, further, at the time the petition was imosity toward respondent to interfere with her re that her home is unsafe or that her behavior to this cient to support Family Court s conclusion that a the relevant period to support the determination filed, respondent s live-in girlfriend, who had the record evidence, taken as a whole, to be suffi the child s best interest to modifi the existing cus exhibited sufficiently irresponsible behavior during hibited unacceptable behavior in allowing her an sponsibility to her child, as evidenced, for example, point has negatively impacted the child. We view has, however, according to record evidence, also lent additional support to respondent, leaving re summation as a report but, in lieu making Court, however, not only referred to the cord. this case are based upon our search the record tions and find them to be without merit. Law Guardian has too long been tolerated in fam the court than the positions the attorneys for each the completion a proceeding whether orally, on We have considered respondent s remaining conten ney representing the child. court asks the child s attorney to make a recom reports and recommendations. The Law Guard position must be supported by evidence in the re sessments. We have not given the Law Guardian s Guardian more properly as the position the attor the record, or in writing (see Id. at 78$ n) and that have treated the recommendations the Law ian should take a position on behalf the child at the parents. Attorneys representing parents do an s position to something more **3 important to ily Court and matrimonial proceedings. When a The use by a court the recommendation the The findings and conclusions that we have made in with due deference to Family Court s credibility as cision the Law Guardian s submission in its en derstood his rote. * 1054 mendation, it improperly elevates the Law Guardi summation greater weight than the arguments and positions the attorneys for the parents and we cord evidence in support his position. family tirety. The Law Guardian also made that he, as well as Family Court, may have misun not advocate on behalf their clients by making summation and appropriately relied solely on re independent findings, adopted in its own de recommendations in his submission; evidence Page 59 67

58 Page Wst[aw 75 A.D.3d $71 75 A.D.3d $71 (Cite as: 75 A.D.3d 871, 905 N.Y.S.2d 361) C Christopher B. v Patricia B. Matter 75 A.D.3d 871, 905 N.Y.S.2d 361 NY, A.D.3d 871, 905 N.Y.S.2d 361, 2010 WL , 2010 N.Y. Slip op. In the Matter Christopher B., Appellant V Patricia B., Respondent. (And Two Other Related Proceedings.) Supreme Court, Appellate Division, Third Depart ment, New York CITE TITLE AS: Matter ciab. July 15, 2010 HEADNOTE Parent, Child and Family Custody Hearing Christopher B. v Patti Family Court erred in denying petition seeking modification custody order without first holding evidentiaiy hearing where father alleged that child was sexually abused while in custody that mother violated terms prior order; father presented records from county agency indicating that mother reported that child was victim sexual abuse further, Family Court s order was in error insar as it was issued before attorney for child could interview his client, thus prohibiting attorney from taking active role in and effectively ing interests his client. mother and represent Abbie Goldbas, Utica, for appellant. Sheila M. Hurley, Catskill, attorney for the child. Egan Jr., J. Appeal from an order the Family Court Chenango County (Sullivan, J.), entered April 1, 2009, which, among other things, missed petitioner s application, in three proceedings dis Page 1 pursuant to Family Ct Act articles 6 and 8, for modification a prior order custody and tion. visita The parties are the parents a daughter born in In November 2007, while the father was carcerated, the parties entered into an agreement in Family Court whereby they were granted joint tody the child, with the mother having primary physical custody and the father having certain ation rights. In August 2008, after the father had been released from custody, the parties entered into a further stipulation in conjunction with a divorce action in Supreme Court that continued the prior joint and primary physical custody arrangement, granted the father visitation rights, provided tions the child s contact with each parties spective paramours and also ordered that the child reside within 30 miles the City Utica, Oneida County. In March 2009, the father filed an gency petition seeking a modification the tody order alleging, among other things, that the child had been sexually abused by the then- 17-year-old boyfriend the mother s older ter. The father also filed a family fense petition and a petition alleging that the mother violated, among other things, the court ordered visitation schedule.**2 in cus visit restric re emer cus daugh At the initial court appearance, conducted several days later, Court engaged both pro se parties in a brief discussion *872 as to what they would like to accomplish, but no testimony was taken and no hearing was scheduled. The attorney for the child appeared and advised the court that he had just returned from vacation and had not had a chance to speak to the child. Court cluded that the child s well-being was not being jeopardized and advised the parties that it would sue an order directing that the child not be in the presence her sister s boyfriend without one the parties being present, but otherwise continued preme Court s order. The father now family family appeals. con is Su http ://web2.westlaw.com/print/printstream.aspx?destination=atp&vr=2.0&prid=ia /7/2014

59 der to insure the continued best interest the child (Matter Rue v Carpenter, 69 AD3d 123$, this, and in view the lack information be cumstances reflecting a real need for change in or Modification an established custody arrange pursued against the child s alleged abuser, but ad mitted her belief that such abuse did occur. In light ment requires a showing sufficient change in cir not under oath, stated that no criminal charges were the initial court appearance, the mother, although (Cite as: 75 A.D.3d 871, 905 N.Y.S.2d 361) 75 A.D.3d A.D.3d 871 Page 2 0&pridia /7/2014 4a prehensive independent review the [child s] best warrant a hearing or no hearing is requested and the fails to make a sufficient evidentiary showing to an evidentiary hearing is necessary and should be AD3d 1205, 1206 [2009];Matter Karpensky v AD3d 929, 929 [2007]), and his petition must basis for relief (Matter Brj ant-bosshold v Bosshold, 273 AD2U 717, 718 [2000]). Generally home would constitute a sufficient change cir terms the prior order. In support his petition, child was the victim sexual abuse. Moreover, at to the contention that Family Court erred in deny that, in January 2009, the mother reported that the *$73 the mother and that the mother violated the Here, upon our review the record, we find merit the child was sexually abused while in the custody L., 28$ AD2d 720, 722 [2001]). cumstances warranting modification an existing subjected to sexual abuse in the custodial parent s [S]ubstantiated allegations that a child has been fielding v fielding, 41 AD3d 929, 929 [2007]:Matter Cornell v Cornell, 8 AD3d 718, 719 [2004]). 673, 675 [2001] [citations omittedj; see i Iatter ing the father s petition seeking modification the the father presented records from the Oneida omitted]; see Matter Bronson v Bronson. 63 Karpensky, 235 AD2d 594, 595 [19971). The party seeking the modification the father bears the burden demonstrating such change in circum stances (see Mutter Fielding v Fielding, 4 1 allege facts which, if established, would afford a conducted unless the party seeking the modification court has sufficient information to undertake a com interests (Matter Chiuick v Fan er, 279 AD2d custody arrangement (Matter Gcuy ]. v Colleen custody order without first holding an evidentiary hearing. The father made specific allegations that County Child Advocacy Center, which indicate them to be without merit. any issues with respect thereto are deemed Copr. (c) 2014, Secretary State, State New Cardona, P.J., Peters, Spain and McCarthy, JJ., con AD3d $48. $49 n [2004]). cumstances and best interest the child. We have reviewed the parties remaining arguments and find without costs, by reversing so much there as dis missed petitioner s modification petition; matter re mitted to the Family Court Chenango County for FOOTNOTES abandoned (see Matte,- Silano v Oxford, NY3d 603 [2004];Rothberg v Reichelt, 5 10 AD3U 466, 467 n [2004],lv denied3 er s family fense and violation petitions cur. Ordered that the order is modified, on the law, tiaiy hearing to resolve the issue a change in cir 4$ AD3d 906, 907 [2008]:Matter Vickery v Vick cry, 2$ AD3d 833, $34 [2006]). Accordingly, we Court s decision; and, as so modified, affirmed. insar as it was issued before the **3 attorney for fectively representing the interests his client (see Family Ct Act 241; Matter Figueroa v Lopez, remit this matter to family Court for a full eviden further proceedings not inconsistent with this We likewise find Family Court s order was in error FN* Family Court s dismissal the fath tablished a sufficient evidentiary basis to warrant a hearing (see Matter Howard v Barber. 47 AD3d 1239 [20101 [internal quotation marks and citations ine whether modifying the prior order would be in [2008]). fore Family Court which would permit it to determ the child s best interest, we find that the father es the child could interview his client, thus prohibiting the attorney from taking an active role in and ef was not addressed in the father s brief, and Page 63 67

60 (Cite as: 17 A.D.3d 1038, 794 N.Y.S.2d 195) 17A.D.3d 103$, 794 N.Y.S.2d 195 ified on the law by vacating those parts the first Matter Dominique A.W. be and * 1039 the same hereby is unanimously mod It is hereby ordered that the order so appealed from 17 A.D.3d 103$ 17 A.D.3d 103$ Page 1 Westlaw 11/7/2014 4? ment, New York CITE TITLE AS: Matter Dominique A.W. Parent, Child and family plan for her law guardian failed to follow applic with respect to daughter will result in legal orphanage, and despite failure respondent to address specific problem that led to daughter s re moval, may not be in daughter s best interests in a proceeding pursuant to Social Services tody the children to petitioner and authorized pe in residential facility, was error there was no pro Permanent Neglect HEADNOTE pellant. Termination Parental Rights Termination respondent s parental rights with re Health Services, Respondent; Colleen C.-G., Ap Supreme Court, Appellate Division, fourth Depart April 29, 2005 spect to her 17-year-old daughter, who was residing spective adoptive home for daughter and petitioner Appeal from an order the family Court, Monroe County (Marilyn L. O Connor, J.), entered May 27, parental rights, committed guardianship and cus Law 384-b. The order terminated respondent s fants. Monroe County Department Human and was in process developing independent living able guidelines and standards with respect to In the Matter Dominique A.W. and Others, In , 2005 N.Y. Slip Op daughter s situation termination parental rights 17 A.D.3d 103$, 794 N.Y.S.2d 195, 2005 WL NY,2005. titioner to consent to the adoption the children. tion that, upon a finding permanent neglect, ter her children, committed their guardianship and cus itional hearing is the best interests the child [renj was not likely to change [her] behavior is entitled them (see id). Thus, petitioner established that it is tion proceeding was commenced against Domin ential facility. At the time the dispositional hear- to the oldest child, Dominique. A separate termina lives in another part the country and stated that ique is now 17 years old and is residing in a resid ive foster mothers those children wish to adopt he wished to surrender his parental rights. Domin ique s father and, according to **2 the record, he AD2U 909 [1999] see also Matter Stephen S., 12 In addition, the record establishes that the respect to great deference (Philip D., 266 AD2d at 909). Contrary to the contention respondent, family Court did not abuse its discretion in terminating her parental rights with respect to her four younger spect to those children (see Matter Philip D., 266 minating respondent s parental rights with respect cord before us the court abused its discretion in ter We agree with respondent, however, that on the re in the best interests those children to be freed for without costs and the matter is remitted to family accordance with the following memorandum: Re spondent mother appeals from an order disposi minated her parental rights with respect to five children and freeing those children for adoption rather than entering a suspended judgment with re Matter Jason J., 283 AD2U 982 [2001]). ique A.W. and as modified the order is affirmed [and] [t]he court s assessment that respondent three ordering paragraphs with respect to Domin Court, Monroe County, for further proceedings in tody to petitioner, and freed them for adoption. AD3d [2004];Matter Susan C., I AD3d 991 [2003]). The court s focus at the dispos adoption (see id.;see also Family Ct Act 631; Page 66 67

61 One law guardian represented all five children and, and apprise the court the child s wishes. Finally, veloping an independent living plan for her. provides that the law guardian should present and advocate a specific dispositional plan to the court Dominique and petitioner was in the process de ives available to the court. Standard D-1 part IV ing, there was no prospective adoptive home for 17A.D.3d A.D.3d 103$ (Cite as: 17 A.D.3d 1038, 794 N.Y.S.2d 195) Page 2 ent privilege and the possible dispositional alternat http ://web2.westlaw.con /print/printstream.aspx?destination=atp&vr=2.0&prid=ia /7/2014 Guardian Representation Standards with respect to, detailed facts and the child s wishes concerning provides that the child should be advised, in terms foster parents and the law guardian, the attorney-cu- inter alia, proceedings for the termination parent role and responsibility the agency, the court, the ceeding, the child s rights, the parents rights, the the child can understand, the nature the pro placement and adoption. Standard A-S part IV law guardian should interview the child to ascertain al rights. Standard A-4 part IV provides that the on Children and the Law has also promulgated Law The New York State Bar Association s Committee Copr. (c) 2014, Secretary State, State New York END OF DOCUMENT WL N.Y. Slip 0p Slip Op , 794 N.Y.S.2d N.Y.S.2d WL N.Y. NY,2005. Matter Dominique A.W N.Y. Slip Op , A.D.3d 103$, 794 N.Y.S.2d WL the child s wishes. None those services was an should, inter alia, present and advocate a specific inter alia, the child s wishes and needs. After the in the record. idential facility. Such a possibility is not mentioned mental Advisory Committee the Fourth Depart child over age three, the law guardian should ar posed. At the dispositional hearing, the law guardi understood that she was then AWOL from a res Department *1040 issued in 1987 by the Depart range to visit and interview the child in an ageappropriate manner to ascertain facts concerning, fact-finding hearing, the child should be consulted provided to Dominique. ian acknowledged that he had never met Dominique deed, at oral argument this appeal the law guard and opined that she was at least 16 years age. He The Guidelines for Law Guardians in the Fourth that, before an initial appearance on behalf a and apprised the specific dispositional plans pro dren, he failed to address Dominique s situation. In while he spoke favorably with respect to the pro spective adoptive mothers the four younger chil ment Law Guardian Program provide in relevant part with respect to permanent neglect proceedings dispositional plan to the court and inform the court [2003]) and we conclude that, despite the failure spondent s parental rights with respect to Domin ental rights with respect to Dominique, committing and Pine, JJ. *1041 guardian and a new dispositional hearing. vacating those parts terminating respondent s par Family Court for appointment a different law 635, 638 [1997]). We therefore modify the order by Id. at ; Mutter Michael E., 241 AD2d to Dominique s removal, the termination re age (Mc,tter Amber AA., 301 AD2d 694, 697 ique may not be in Dominique s best interests (see ing her for adoption, and we remit the matter to respect to Dominique will result in legal orphan respondent to address the specific problem that led Present Pigott, Jr., P.J., Hurlbutt, Martoche, Smith in fact the court seemed confused about the plan for the responsibilities each the parties. None the above standards has been met, and we note that ies and post-disposition motions and hearings and tion and its consequences, the rights and possibilit The termination respondent s parental rights with her guardianship and custody to petitioner and free Standard E-1 part IV provides that the law guardian should explain to the child the disposi Dominique. Page 67 67

62 Page 2 26 West[aw 77 A.D.3d A.D.3d 654 (Cite as: 77 A.D.3d 654, 909 N.Y.S.2d 109) H Matter Cristella B. 77 A.D.3d 654, 909 N.Y.S.2d 109 NY, A.D.3d 654, 909 N.Y.S.2d 109, 2010 WL ,2010 N.Y. Slip Op In the Matter Cristella 3. Suffolk County Depart ment Social Services, Respondent, eta!., Re spondents. Robert C. Mitchell, Attorney for the Children, Nonparty Appel tant; Shannon C. et a!., Nonparty Foster Parents. (Proceeding No. 1.) In the Matter Elizabeth B. Suffolk County Department Social Services, Respondent, eta!., Respondent. Robert C. Mitchell, Attorney for the Children, Nonparty Appellant; Shannon C. et a!., Nonparty Foster Parents. (Proceeding No. 2.) In the Matter Jose B. Suffolk County Department Social Services, Respondent, et a!., Respondent. Robert C. Mitchell, Attorney for the Children, Nonparty Appellant; Shannon C. et al., Nonparty Foster Parents. (Proceeding No. 3.) Supreme Court, Appellate Division, Second De partment, New York October 5, 2010 CITE TITLE AS: Matter Cristella 3. HEADNOTE Parent, Child and Family Abused or Neglected Child In child protective proceedings, Family Court prop erly denied motion attorney for children to direct County Department Social Services (DSS) to re frain from interviewing children concerning any is sues beyond those related to safety, without 48 hours notice to him child who is subject neg lect proceeding has constitutional and statutory right to legal representation, and Rule 4.2 Rules Pressional Conduct (22 NYCRR ), which prohibits attorney representing another party in litigation from communicating with or causing Page 1 another to communicate with child without prior consent attorney for child, applies only to attor neys; furthermore, DSS has constitutional and stat utory obligations toward children in its custody, and has mandate to maintain regular communica tions with child in foster care on broad range is sues that go beyond child s immediate health and safety. Robert C. Mitchell, Central Islip, N.Y. (Elizabeth A. Justesen counsel), attorney for the children and nonparty appellant pro se. Christine Malafi, County Attorney, Central Islip, N.Y. (James G. Bernet and Frank J. Albert coun sel), for petitioner-respondent. Stephen R. Heliman, Esq. P.C., West Sayville, N.Y., for Shannon C., and Timothy C., nonparty foster parents. Steven Banks, New York, N.Y. (Tamara A. Steck ler and Gary Solomon counsel), amicus curiae. In three related child protective proceedings pursu ant to Family Court Act article 10, the **2 attorney for the children appeals from so much an order the Family Court, Suffolk County (Quinn, J.), dated November 13, 2009, as denied that branch his motion which was to direct the Suffolk County Department Social Services to refrain from inter viewing the children concerning any issues beyond those related to safety, without 48 hours notice to him. Ordered that the order is affirmed insar as ap pealed from, without costs or disbursements. The three subject children have been in the custody the Suffolk County Department Social Ser vices (hereinafter the DSS) since September In an order dated January 20, 2009, the family Court, Suffolk County (Tarantino, J.), inter alia, in effect, approved the permanency goal returning the children to their parents, and set a date for their return. The attorney for the children appealed, and by decision and order dated September 8, 2009, this /7/2014

63 the new permanency hearing, the attorney for the ent or another party in a family Court proceeding ( AD3U 1037 [2009]). Prior to the commencement manency hearing (see Matter Cristella B., 65 insar as appealed from, and directed a new per Court reversed the order dated January 20, 2009, Furthermore, the OSS has constitutional and stat worker from that an attorney representing a par utory obligations toward children in its custody, which distinguishes the role an agency case (Cite as: 77 A.D.3d 654, 909 N.Y.S.2d 109) 77 A.D.3d A.D.3d 654 Page 2 hp://web2.west1aw.coprint/printstrea.aspx?destinationatp&vr2.0&pridia /7/2014 Matter Jarnie TT., 191 AD2d 132, protect the child s right to counsel (see Matter Tiajianna M., 55 AD3d 1321, 1323 [200$]). tif the child s attorney before interviewing the by imposing a requirement that the caseworker no We recognize that a child who is the subject a the children appeals, and we affirm. 4.2 applies only to attorneys and, thus, neither pro vin Q., 45 AD3d $52, $53 [2007]). However, rule Social Servs. /Luz S.], 20$ AD2d 746, 747 [1994]; Brian R.. 4$ AD3d 575, 576 [2008];Matter Mar prior notification to her would deprive them their right to counsel. The Family Court denied that consent the attorney for the child, operates to its an attorney representing another party in the lit a DSS caseworker to interview the children without children s wishes at the previous hearing, allowing er to communicate with the child without the prior attorney for the children *656 argued that since the interviewing the children on issues unrelated to neglect proceeding has a constitutional and stat Act 241, 249; Matter New York City Dept. issues beyond those related to safety, without 4$ hours notice to him. In support this request, the safety without prior notification. The attorney for [1993]). Moreover, rule 4.2 the Rules Pres sional Conduct (22 NYCRR ), which prohib igation from communicating with or causing anoth children moved, inter alia, to direct the DSS to re frain from interviewing the children concerning any agency had taken a position in conflict with the branch the motion the attorney for the chil dren which was to direct the DSS to refrain from utory right to legal representation (seefamily Ct hibits a DSS caseworker from interviewing a child entrusted to the agency s care, nor justifies a signi ficant restriction on the agency s access to the child child on issues unrelated to safety (see Matter WL N.Y. Slip Op DSS caseworker is required to have monthly the Family Court properly denied that branch the Slip Op , 909 N.Y.S.2d [a] [1] [vii]; seesocial Services Law 409-e). pose assess[ing] the child s current safety and 10 years old, whenever possible (18 NYCRR in consultation with the family and each child over sessments and to develop a plan services made Additionally, after the first 30 days placement, a face-to-face contact with the child for the pur resolving problems a social, emotional or devel NYCRR [cj [1]). Given this statutory and prior notice to their attorney. Rivera, J.P., Dicker N.Y. Slip Op , A.D.3d 654, 909 N.Y.S.2d WI child s immediate health and safety. Accordingly, guide the child towards a course action aimed at the reason(s) why such child is in foster care (18 DSS, the agency has a duty to conduct family as well being, to evaluate or re-evaluate the child s tain regular communications with a child in foster care on a broad range issues that go beyond the Copr. (c) 2014, Secretary State, State New York son, Eng and Austin, JJ., concur. AD2d 194, 196 [1986]). Once a child is placed in opmental nature *657 that are contributing towards motion the attorney for the children which was to direct the DSS to refrain from interviewing the sub Matter Cristella B. seeny Const, art XVII, I; Pahner v Cuorno, 121 foster care, through a designated agency such as permanency needs and permanency goal, and to regulatory framework, DSS has a mandate to main ject children on issues unrelated to safety without NY,2010. N.Y.S.2d WI N.Y. Page 3 26

64 Page 6 26 Wesw 75 A.D.3d A.D.3d 597 (Cite as: 75 A.D.3d 597, 906 N.Y.S.2d 70) H Matter Awan v Awan 75 A.D.3d 597, 906 N.Y.S.2d 70 NY, A.D.3d 597, 906 N.Y.S.2d 70, 2010 WL , 2010N.Y. Slip Op In the Matter Aamir Awan, Appellant V Paras Awan, Respondent. Supreme Court, Appellate Division, Second De partment, New York July 20, 2010 CITE TITLE AS: Matter Awan v Awan HEADNOTE Parent, Child and Family Custody Expert Testimony In custody proceeding, Family Court did not err in striking the testimony expert retained by father, and in precluding further testimony by expert; fath er s attorney violated Rules Pressional Conduct rule 4.2 (22 NYCRR ) by allowing physi cian, whom attorney retained or caused father to re tain, to interview and examine child regarding pending dispute and to prepare report without knowledge or consent attorney for child; further, father s attorney also failed to inform mother s at torney that examination. McLaughlin & Stern, LLP, New York, N.Y. (Peter Alkalay and Eric Wrubel counsel), for appellant. Adam F. Small, Merrick, N.Y., for respondent. Robert C. Mitchell, Riverhead, N.Y. (Diane B. Groom counsel), attorney for the child. In a proceeding pursuant to Family Court Act art icle 6, the father appeals from an order the Fam ily Court, Suffolk County (Tarantino, Jr., J.), dated November 11, 2009, which, after a hearing, inter Page 1 alia, granted the mother s petition to enforce *598 a provision a custody and visitation order the same court dated March 14, 2008, and, in effect, denied his motion to modify certain provisions the order dated March 14, Ordered that the appeal from so much the order as granted that branch the petition which was to enforce the provision the order dated March 14, 2008, so as to permit the mother to travel to Pakistan with the subject child in late 2009 and dir ected the father to execute a document permitting the child to obtain a passport is dismissed as aca demic, without costs or disbursements; and it is fur ther, Ordered that the order is affirmed insar as re viewed, without costs or disbursements. Shortly after the subject child s birth, the parties separated. They eventually negotiated a settlement agreement that provided, inter alia, for joint cus tody with residential custody to the mother and vis itation to the father. Pursuant to an order the Family Court dated March 14, 2008, which embod ied the terms the settlement agreement, the moth er was permitted to travel outside the United States with the child after obtaining medical clear ance for the child to travel. The father failed or re fused to execute the passport documents necessary for the child to travel out the country. The moth er then petitioned the Family Court for an order en forcing the prior order and the father moved to modify certain provisions the prior order so as to prohibit the mother from taking the subject child out the country. The father s appeal from so much the order as, in effect, granted the mother permission to travel to Pakistan with the child in late 2009 and directed him to execute a document permitting the child to obtain a passport has been rendered academic, as that trip already has occurred (see **2Delo,. Corp. v Quigley, Longer, Homes, Pertm ut/er, Mankes & 1--i http ://web2.westlaw.com/print/printstream.aspx?destination=atp&vr=2.0&prid=ia /7/2014

65 The appeal from so much the order as, in effect, Sgroi, JJ., concur. that examination. Skelos, J.P., Hall, Roman and 249 AD2d 433, 434 [1998]). Children is VII. v Greenburgh Eleven Teachers Uni attorney also failed to inform the mother s attorney Nuskind, Partnership, 287 AD2d [2001]; on fedn. Teachers, Local 1532, AFT, AFL-CIO, (Cite as: 75 A.D.3d 597, 906 N.Y.S.2d 70) [1994];family Ct Act 241). Further, the father s Dept. Social Servs. (Luz S.)], 208 AD2d 746, 747 ing Mutter Samuel H. [Matter New York City 75 A.D.3d A.D.3d 597 Page 2 hftp://web2.west1aw.coprint/printstream.aspx?destinationatp&vr2.0&pridia /7/2014 the child s due process rights (id. at , cit knowledge or consent the attorney for the child ( [2003]). The appointment an [attorney [examination and] interview constituted a denial the [attorney for the child] at the subject The Family Court did not err in striking the testi ates an attorney-client relationship, and the absence mony Dr. Ronald Jacobson, an expert retained by and examine the subject child regarding the for the child] to protect the interests a child cre retained or caused the father to retain, to interview pending dispute and to prepare a report without the see Campolongo v Cainpolongo, 2 AD3d 476. Rules Pressional Conduct (22 NYCRR ) rule 4.2 by allowing a physician, whom the attorney Dr. Jacobson. The father s attorney violated the the father, and in precluding further testimony by Difusco. 282 AD2d 753 [2001];cf Matter Gun AD3U 630, 631 [2009];Matter failings v fait 35 AD3d 739 [2006]). The father did not demon 713 [2007];DiVittorio v DiVitto, io, 36 AD3d 84$, *S99lvIatte,. Battista v Fasano, 41 AD3d 712, in circumstances since the original agreement, and which the parties voluntarily agreed, the movant 707, [1980]). However, in order to obtain 849 [2007J;i vfatter Feliciano v A Iichefl-Hurtfo, d, ings, 35 AD3U 464, 465 [2006];Matter Smith v erally Matter Hearst Corp. v Clyne, 50 NY2U modification a custody order or arrangement to prohibit all foreign travel is not academic (see gen order (see Matter Rodriguez v Hangariner. 59 zemnuller v Rivera, 40 AD3U 756, 757 [2007]). sions the order dated March 14, 2008, so as to (see Matter Penn v Penn, 41 AD3d 724 [2007]; denied the father s motion to modify certain provi must show that there has been a significant change that modification is in the best interests the child strate his entitlement to modification the original END Of DOCUMENT 2$ N.Y. Slip Op Slip Op , 906 N.Y,S.2d WL N.Y. Slip 0p , 906 N.Y.S.2d WL N.Y. 75 A.D.3d 597, 906 N.Y.S.2d WL NY,2010. Matter Awan v Awan Copr. (c) 2014, Secretary State, State New York Page 7 26

66 94 A.D.3d 1542, 943 N.Y.S.2d 70$ parties joint custody their two children, with Matter McDermott v Bale Children (AFC) appeals from an order granting the C to Family Court Act article 6, the Attorney for the (Cite as: 94 A.D.3d 1542,943 N.Y.S.2d 70$) 94 A.D.3d A.D.3d 1542 Page 1 West[aw. 0&pridia /7/2014 4q Memorandum: In this custody proceeding pursuant is unanimously affirmed without costs. Supreme Court, Appellate Division, Fourth Depart Sanford A. Church, Attorney for the Children, Al Muscato, Dimillo & Vona, L.L.P., Lockport (P. An Guardian and Ward Attorney for Child * 1543 HEADNOTE Church, Esq., Attorney for the Children, Appellant. bion, appellant pro se. Andrew John Bale, Respondent. Sanford A. April 27, 2012 Participation in Custody Proceeding ent-respondent. er-respondent. joint custody their children, with petitioner-re Appeal from an order the family Court, Orleans County (James P. Punch, J.), entered January 21, James D. Bell, Brockport, for respondent-petition article 6. The order, inter alia, granted the parents V In the Matter Amanda J. McDermott, Respondent ment, New York spondent having primary physical residence. It is hereby ordered that the order so appealed from , 2012 N.Y. Slip Op CITE TITLE AS: Matter McDermott v Bale drew Vona counsel), for petitioner-respond 94 A.D.3d 1542, 943 N.Y.S.2d 708, 2012 WL 2011 in a proceeding pursuant to Family Court Act over the AFCs objection. We reject the AfC s con custody proceedings, although that is no doubt the tion, but family Court approved the stipulation er father. The order incorporated the terms a eve trial. The AFC refused to join in the stipula We cannot agree with the AFC that children in cus and allowing their wishes to scuttle a proposed set tion. Although we agree with the AFC that he must be afforded the same opportunity as aii oth the court here gave the AFC a full and fair oppor tody cases should be given full-party status such to help protect their interests and to help them ex press their wishes to the court (Family Ct Act lowing children to express their wishes to the court in Matter figueroa, upon which the AFC relies, Lopez, 48 AD3d 906, 907 [2008]), the children rep [AfC] to a meaningless role (Matter figueroa v [1999]), and that the court may not relegate the deed, the court gave credence to many the com 241). There is a significant difference between al ment. The purpose an attorney for the children is the reasons that he opposed the stipulation. In Matter White v White. 267 AD2d 888, 890 NY,2012. mother and liberal visitation to respondent-petition er party to fully participate in [the] proceeding proposed settlement reached by their parents and thereby force a trial. The record reflects that, unlike ( primary physical residence to petitioner-respondent written stipulation executed by the parties on the tention that the court erred in approving the stipula resented by the AFC are not permitted to veto a tunity to be heard, and the AFC stated in detail all ments made by the AFC, as did the attorneys for the parents, **2 both whom agreed to modifj the stipulation to address several the AFCs con- cems. that their consent is necessary to effectuate a settle tlement. We note that the court is not required to appoint an attorney for the children in contested Page 9 26

67 tody proceeding have the same legal status as their AD2d $2, $5 [2000]). Thus, there is *1544 no sup port for the AFC s contention that children in a cus AD3U 1123, 1124 [2008]; Davis v Davis, 269 preferred practice (see Matter Arnato v Aniato, 51 (Cite as: 94 A.D.3d 1542, 943 N.Y.S.2d 708) 94A.D.3d 1542 Page 2 94A.D.3d /7/2014 END OF DOCUMENT WL N.Y. Slip Op Slip Op , 943 N.Y.S.2d N.Y.S.2d WL N.Y N.Y. Slip 0p , A.D.3d 1542, 943 N.Y.S.2d WL Matter McDermott v Bale NY,2012. Copr. (c) 2014, Secretary State, State New York Sconiers and Martoche, JJ. costly and ten times embittered litigation merely children s best interests. Parents who wish to settle but not the right to preclude the court from approv proposed settlement and to object to the settlement termines that the terms the settlement are in the their disputes should not be required to engage in because their children or the attorney for the chil or she has the right to be heard with respect to a ing the settlement in the event that the court de tody case appoints an attorney for the children, he dren would prefer a different custodial arrange ment. Present Centra, J.P., Peradotto, Lindley, In sum, we conclude that, where the court in a cus proceedings (see 262 [a] [vi; Matter Kristin RH. vroberte.h.,48ad3d 1278, 1279 [200$]). parents, inasmuch as it is well settled that parents have the right to the assistance counsel in such Page 10 26

68 4$ A.D.3d 906, $51 N.Y.S.2U 689 and, a year later, petitioner (hereinafter the father) Matter Figueroa v Lopez sole custody the parties child in September 2004 Respondent (hereinafter the mother) was awarded (Cite as: 48 A.D.3d 906, 851 N.Y.S.2d 689) 48 A.D.3d 906 Page 1 4$ A.D.3d 906 West1aw. http ://web2.west1aw.com/print/pntstream.aspx?destinationatp&vr2. 0&pridia /7/2014 Guardian and Ward February 21, 200$ Guardian, Family Court could not thereafter releg Family Court responded that it did not care; Family ridiculous, without allowing explanation for his po Labtinen, J. Appeal from an order the family plication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order custody. Order which granted petition to modify prior order Guardian stated that he did not consent to stipula portedly had obtained information (including pos concerned about unsupervised visitation by father. Charles E. Andersen, Law Guardian, Elmira, appel February 23, 2006, which granted petitioner s ap lant. tion, and when he attempted to explain his reason, sible domestic violence by father) which made him sition to be placed on record; Law Guardian re custody was reversed having appointed Law Law Guardian ate Law Guardian to meaningless role Law HEADNOTE CITE TITLE AS: Matter Figueroa v Lopez Court also characterized Law Guardian s position as Court *907 Broome County (Pines, J.), entered Here, the Law Guardian stated that he did not con plain his reason, family Court responded that it did Guardian s position as ridiculous, without allowing not all improper restrictions imposed on a Law Although appointing a Law Guardian is not stat ceeding to protect the interests the child (see Mutter Miller v Miller, 220 AD2d 133, 135 AD2d 825, [1991]). We have previously observed that a Law Guardian must be afforded information (including possible domestic violence supervised visitation by the father. Moreover, while by the father) which made him concerned about un and such an appointment was important in this pro [1996]). Having made the appointment, Family record. The Law Guardian reportedly had obtained White, 267 AD2d 888, 890 [1999], quoting Mutter an explanation for his position to be placed on the utorily required in contested custody proceedings, doing so is the preferred practice (see Matter qi Robinson v Cleveland, 42 AD3d [2007]) Court cannot thereafter relegate the Law Guardian sent to the stipulation. When he attempted to ex not care. Family Court also characterized the Law lv denied9l NY2U 813 [1998] [emphasis omitted]). Machukas e Wagner, 246 AD2d $40, $42 [19981, participate in a proceeding (Matter White v the same opportunity as any other party to fully to a meaningless role (see Frizzell v Frizzell, 177 Supreme Court, Appellate Division, Third Depart ment, New York as Law Guardian, Appellant. Lydia M. Lopez, Appellant. Charles F. Andersen, V stipulation and, when he attempted to explain his permitted to give his reasons. Following entry an In the Matter Luis F. Figueroa, Respondent ian stated that he did not consent to the terms the and the father receiving visitation. The Law Guard , 2008 N.Y. Slip Op order based on the terms the stipulation, the Law Guardian and the mother appealed.**2 48 A.D.3d 906, 851 N.Y.S.2d 689, 2008 WL the parties stipulated on the record to joint custody, NY,200$. commencement a hearing on the father s petition, filed a modification petition seeking custody. At the with the mother having primary physical custody reasons, he was cut f by Family Court and not Page 12 26

69 ates sufficient facts to uphold the determination ( 2$4 AD2d 600, 603 [2001]), this sparse record is also Matter Vickeiy v Vickery, 2$ AD3d 833, Guardian will result in reversal if the record indic see Matter White v White, 267 AD2U at 890:see (Cite as: 4$ A.D.3d 906, 851 N.Y.S.2d 689) 4$ A.D.3d A.D.3d 906 Page [2006J;hfatter Kaczvnski v Van Amerongen, http ://web2.westlaw.com/print/printstream.aspx?destinationatp&vr2.0&pridria /7/2014 END Of DOCUMENT WL N.Y. Slip Op Copr. (c) 2014, Secretary State, State New York Slip 0p , 851 N.Y.S.2d N.Y. Slip 0p , 851 N.Y.S.2d $ WL N.Y. 48 A.D.3d 906, 851 N.Y.S.2d WL NY,2008. Matter Figueroa v Lopez [20011). and it is therefore deemed abandoned (see fn* The mother did not perfect her appeal Pahi v Grenier, 279 AD2d 882, $83 n FOOThOTES without costs, and matter remitted to the Family Ordered that the order is reversed, on the law, Cardona, P.J., Peters, Spain and Kane, JJ., concur. Court Broome County for further proceedings not inconsistent with this Court s decision. argued nearly two years from the date the order appealed from, reversal is nonetheless required. fact that, despite a hearing transcript two pages, this appeal took more than a year to perfect and was inadequate. While *908 the Court is troubled by the Page 13 26

70 Matter Kessler v fancher AD3U [2006]). We exercise our discre H lies from a decision (see Pecora v Lcnvrence. 2$ (Cite as: 112 A.D.3d 1323, 978 N.Y.S.2d 501) 112 A.D.3d 1323 Page A.D.3d 1323 Wesilaw /7/2014 petition for modification a custody order. various missing petitions filed by the parents two children. We note minor at the outset that no appeal (AfC) appeals from a decision Family Court dis Parent, Child and Family Scott M. Fancher, respondent-respondent pro se. Copr. (c) 2014, Secretary State, State New Abandoned Petition September 10, 2012 in a proceeding pursuant to Court Family Act article 6. The order dismissed the Memorandum: The Attorney for the Children is unanimously affirmed without costs. It is hereby ordered that the order so appealed from son County (Peter A. Schwerzmann, A.J.), entered Custody Appeal from an order the Family Court, Jeffer Mary L. Kessler, petitioner pro se. Scott A. Otis, Watertown, appellant pro se. not force the mother to litigate a **2 petition that wrote in McDermott, children in custody cases Centra, Lindley, Sconiers and Valentino, JJ. should [not] be given full-party status such thai their consent is necessary to effectuate a settlement maining contentions. Present Scudder, P.J., the mother has not taken an appeal from that order. she has since abandoned (see Matter McDermott peal No. 2 and see no need to address the Af C s re With respect to the order in appeal No. 2, which tion (Id. at 1543). We thus affirm the order in ap (mother) seeking modification a custody order, There is a significant difference between allow allowing their wishes to chart the course litiga ing children to express their wishes to the court and v Bale, 94 AD3U 1542, [2012]). As we The children, while dissatisfied with the order, can dismissed *1324 the petition Mary L. Kessler Parties Aggrieved Appeal Custody Proceeding December 27, 2013 HEADNOTES clude that the children are not aggrieved by the or ment, New York V In the Matter Mary L. Kessler, Petitioner , 2013 N.Y. Slip op Scott M. fancher, Respondent. Scott A. Otis, Attor ney for the Children, Appellant. (Appeal No. 2.) Supreme Court, Appellate Division, Fourth Depart CITE TITLE AS: Matter Kessler v Fancher Moreover, inasmuch as the AfC opposed the relief v TBV, Inc., 76 AD3U 144, [2010]). City NY, 60 NY2d 539, [1983]; MLton generally Parochial Bus 5ys. v Board Educ. o/ Lagano v Soule, $6 AD3d 665, 666 n 4 [201 1]; see protection against the other parent (see Matter one parent alleging that the other parent had viol and 3 through 7. We conclude that the children are not aggrieved by the orders in appeal Nos. 1 and 3 through 6 inas the AFC s appeals from the orders in appeal Nos A.D.3d 1323, 978 N.Y.S.2d 501, 2013 WL NY,2013. requested in the petition in appeal No. 7, we con and deem the appeals as taken from the seven or ders in the respective appeals that were entered upon the single decision (seecplr 5520 [ci). 112 A.D.3d 1323, 978 N.Y.S.2d 501 tion, however, to treat the notice appeal as valid much as those orders dismissed petitions filed by ated an order custody or seeking a personal order der dismissing that petition. We therefore dismiss Page 25 26

71 91 A.D..3d 1344, 938 N.Y.S.2d 692 Matter Jayden B. (Erica R.) termining that petitioner failed to prove by a pre ponderance *1345 the evidence that the children C andum: We conclude that family Court erred in de (Cite as: 91 A.D.3d 1344, 938 N.Y.S.2d 692) 91 A.D.3d 1344 Page 1 91 A.D.3d 1344 Westtaw.. http ://web2.west1aw.conprint/printstream.aspx?destinationatp&vr2.0&prid=ia /7/ LI 24, 2011 in a proceeding pursuant to Family Court ings in accordance with the following memor Abused or Neglected Child Domestic Violence HEADNOTES Oswego County Department Social Services, Supreme Court, Appellate Division, Fourth Depart ment, New York CITE TITLE AS: Matter Jayden B. (Erica R.) Parent, Child and Family Parent, Child and Family counsel), for petitioner-appellant. Courtney S. Radick, Attorney for the Child, Oswego, for Jayden wego, for Nathan F. County (Kimberly M. Seager, J.), entered March the petition is granted, and the matter is remitted to is unanimously reversed on the law without costs, It is hereby ordered that the order so appealed from Act article 10. The order dismissed the petition. B. Nelson Law Firm, Mexico (Annalise M. Dykas Stephanie N. Davis, Attorney for the Child, Os Appeal from an order the Family Court, Oswego In the Matter Jayden B. and Another, Infants ,2012 N.Y. Slip op A.D.3d 1344, 93$ N.Y.S.2d 692, 2012 WL NY,2012. Appellant; Erica R., Respondent. January 31, 2012 Abused or Neglected Child Corroboration Child s Out--Court Statement Family Court, Oswego County, for further proceed a loud argument in the living room, during which a scratch on the mother s neck, which the mother 1, 8-9 [20111). We note that, in connection with her [f [i] [B]; Matter Afton C. [James C.], 17 NY3d petitioner established by a preponderance the mother and respondent (see Family Ct Act 1012 emotional impairment based upon the alleged in Upon our review the record, we conclude that 1140, [2011]). Matter Shatyn PP. v Richard QQ., 83 AD3U by petitioner, they have not been considered (see Family Ct Act 1046 [a]). We note at the outset that the respective Attorneys for the Children did not take an appeal from the order, and thus to the extent that their briefs raise contentions not raised and in therefore dismissing the petition herein (see they struck each other. The police ficer observed Matter Nassau C ounty Dept. Social Servs. v [against her] that the opposing evidence permits based upon her failure to testify at the hearing ( and respondent had several disagreements and ar [that] sometimes [the children] were afraid. Re children based upon, inter alia, domestic violence between respondent and the mother the children evidence that the children were in imminent danger admission in the separate neglect proceeding brought against her, the mother admitted that she guments. spondent failed to appear at the instant fact-finding Denise J., $7 NY2d 73, 79 [1995]; see Matter residence on a specified date, both the mother and respondent admitted that they had been engaged in According to the evidence presented at the factfinding hearing, when the police responded to the [201 l]).**2.. in the presence the children and who are the subject this proceeding are neglected cidents domestic violence between the children s hearing, and thus we draw the strongest inference Kennedie M. [Kimberly M], $9 AD3d 1544, 1545 Page 15 26

72 Page A.D.3d A.D.3d 1344 (Cite as: 91 A.D.3d 1344, 938 N.Y.S.2d 692) admitted she received while she and respondent were fighting. The police ficer further observed that the one-year-old child (younger child) was cry ing in a bedroom, and he described the child as shook up and scared. We conclude that the younger child s proximity to the physical and verbal fighting that occurred in the living room, together with the evidence a pattern ongoing domestic violence in the home, placed him in imminent risk emotional harm (see Kennedie M, 89 AD3d at 1545; cf Matter Larry AD3d 633 [2004]). Although the hearing court s determinations are en titled to great deference (see generally Matter Syira W. [Latasha B.], 78 AD3d 1552, 1553 [2010] ), we conclude that the court s determination that the statements the five-year-old child (older *1346 child) were not corroborated is not supported by a sound and substantial basis in the record. Corroboration, for purposes article 10 proceed ings, is defined to mean [amy other evidence tend ing to support the reliability the previous state ments the child (Matter Christina F., 74 NY2d 532, 536 [1989]), and here we conclude that the older child s statements were sufficiently cor roborated. The caseworker for Child Protective Services testi fied at the fact-finding hearing that the body lan guage the older child changed when he spoke about his mother and respondent, and that he fused to talk to her while he was at his mother s house. While at his father s house, however, the older child explained to the caseworker that he did not want to speak with her at his mother s house be cause his mother repeatedly entered and then left the room. He told the caseworker that his mother and respondent fought ten; that respondent had locked them out the house; and that he was afraid respondent. He demonstrated with the use two Barbie dolls a physical fight that involved hair-pulling and pushing, which ended with the in tervention a male doll, who represented a police ficer. furthermore, the evidence at the factfinding hearing established that the police respon re Page 2 ded to the home respondent and the mother on several occasions for reports domestic violence. A neighbor testified that she heard loud fighting between respondent and the mother on a weekly basis and that she observed the police responding to those fights at least once per month. The neighbor further testified that she had seen that the mother had been locked out the house by respondent on more than one occasion. The child care provider for the children testified that the older child told her on several occasions that respondent hurt his mother, and the child care provider in fact observed a large bruise on the mother s face. When she questioned the mother about the bruise, the mother explained that it had happened in a bar, but after his mother left the house the older child told the child care pro. vider that [respondent] did it. We therefore fur ther conclude that the ongoing pattern domestic violence also placed the older child in imminent risk emotional harm, thus compelling the conclu sion that both children are neglected based upon the actions respondent (see Kennedie ItI., $9 AD3d at 1545). We thus reverse the order, grant the peti tion, and remit the matter to Family Court for a dis positional hearing. Present Scudder, P.J., Smith, Sconiers, Gorski and Martoche, JJ. Copr. (c) 2014, Secretary State, State New York NY,2012. Matter Jayden B. (Erica R.) 91 A.D.3d 1344, 93$ N.Y.S.2d WL N.Y. Slip Op , 938 N.Y.S.2d WL N.Y. Slip 0p , 938 N.Y.S.2d WL N.Y. Slip Op END OF DOCUMENT i.5 http ://web2.westlaw.comlprint/printstream.aspx?destinationatp&vr2.0&pridia /7/2014

73 90 A.D.3d 1095, 934 N.Y.S.2d 553 Matter Lamarcus E. (Jonathan E.) father planned to place the child in foster care. H plan for the child s care in his absence, and that the (Cite as: 90 A.D.3d 1095, 934 N.Y.S.2d 553) 90 A.D.3d A.D.3d 1095 Page 1 Westi.aw. http ://web2.west1aw.con!print/printstream.aspx?destiflatioflatp&vr=2. 0&pridia /7/2014 5(0 HEADNOTE Respondent is the father the subject child (born necticut without his child and without any viable that he planned to permanently relocate to Con to adjudicate respondent s child to be neglected. ded to relocate to Connecticut in October 2009 to er filed a neglect petition against the father alleging E.) CITE TITLE AS: Matter Lamarcus E. (Jonathan Steven Ramer, Otsego County Department So Spain, J.P. Appeal from an order the Family not be taking his son with him. Thereafter, petition a proceeding pursuant to Family Ct Act article 10, 28, 2010, which granted petitioner s application, in cial Services, Cooperstown, for respondent. Supreme Court, Appellate Division, Third Depart Abused or Neglected Child Michelle I. Rosien, Philmont, attorney for the child. Court Otsego County (Bums, I.), entered July supervision, the father told petitioner that he inten In the Matter Lamarcus E., a Child Alleged to be , 2011 N.Y. Slip op Services, Respondent; Jonathan E., Appellant. Parent, Child and family ment, New York Child Denied Meaningful Assistance Coun sel Counsel s failure to Consult with Child work and live with his girlfriend, but that he would 90 A.D.3d 1095, 934 N.Y.S.2U 553, 2011 WL in 2002). In August 2009, while under petitioner s NY,2011. Neglected. Otsego County Department Social December 1, 2011 Christopher Hammond, Cooperstown, for appellant. *1096 the child continue his placement with peti tioner. The father now appeals. No **2 appeal has appeal is not the same attorney who continues to her brief that she has not personally met with her Court]. The child s appellate attorney has provided ner consistent with the child s capacities (22 her essential responsibilities as the attorney for the stances, is a significant component to the meaning ment[.] [TJhe decision this Court will be with- this appeal that is consistent with that taken by the and the status the [proceedings in Family family Court has been able to provide me with the child s attorney in the ongoing proceedings in client, who is now nine years old. She explains that child s appellate attorney has taken a position on child s attorney in Family Court, she has reported in dispositional hearing, Family Court directed that denied the meaningful assistance appellate coun appellate counsel will be relieved her assign Lewis v Fuller (69 AD3U 1142 [2010]), the child s AD3U 1092, [20091) and Matter sel (see Ala/Icr Jainie TT, 191 AD2d 132, ful representation a child. Therefore, given the child. Client contact, absent extraordinary circum this Court with no further explanation. and advise the child to the extent and in a man Following a fact-finding hearing, the father was de termined to have neglected his child and, after a represent the child in Family Court. Although the continuing information on my client, his position NYCRR 7.2 [di [I]) constitutes a failure to meet circumstances herein, and for the reasons clearly ar ticulated in Matter Mark T. v,joyanna U. (64 er. The father relocated to Connecticut the next day. Upon receipt the petition, Family Court removed the child and placed him in the custody petition been taken on behalf the child. The attorney assigned to represent the child on this Given the foregoing, we find that the child has been [19931). Counsel s failure to consult with Page 18 26

74 Page A.D.3d 1095 Page 2 90A.D.3d 1095 (Cite as: 90 A.D.3d 1095, 934 N.Y.S.2d 553) held and a new appellate attorney will be assigned to represent the child to address after consulting with and advising the child any issue the record may disclose (Matter 69 AD3d at 1143; see Matter 1038, [2005], lv denied5 NY3d 706 [2005]). Lewis v fuller, Dominique A. W, 17 AD3d Rose, Kavanagh, Stein and Garry, JJ., concur. Ordered that the decision is withheld, appellate counsel for the child is relieved assignment and new counsel to be assigned to represent the child on this appeal. Copr. (c) 2014, Secretary NY, Matter Lamarcus E. (Jonathan E.) 90 A.D.3d 1095, 934 N.Y.S.2d WL N.Y. Slip Op , 934 N.Y.S.2d WL N.Y. Slip Op , 934 N.Y.S.2d WL N.Y. Slip Op END Of DOCUMENT State, State New York /7/2014

75 Matter Mark T. v Joyanna U. In December 1996, petitioner and respondent Joyanna U. (hereinafter the mother) engaged in a sexu H (Cite as: 64 A.D.3d 1092, 882 N.Y.S.2d 773) 64 A.D.3d 1092 Page 1 64 A.D.3d 1092 Wst[aw. 0&pridia /7/2014 John D. Cadore, Binghamton, for Joyanna U., re motion respondent Joyanna U. to dismiss the pe tition. ing and advising his client, appellate counsel failed 27, 2008, which, among other things, in a proceed ing pursuant to Family Ct Act article 5, granted the Guardian and Ward Teresa C. Mulliken, Harpersfield, for Paul V., re spondent. Malone Jr., J. Appeal from an order the Family Court Broome County (Pines, J.), entered March J. Mark McQuerrey, Law Guardian, Hoosick Falls. not receive meaningful assistance appellate In paternity proceeding, 11 1/2 -year-old child did Law Guardian CITE TITLE AS: Matter Mark T. v Joyanna U. ment, New York lated Proceeding.) Christopher A. Pogson, Binghamton, for appellant. relieved his assignment and new appellate attor to fulfill his essential obligation accordingly, de V In the Matter Mark I., Appellant , 2009 N.Y. Slip op Joyaima U. et al., Respondents. (And Another Re Supreme Court, Appellate Division, Third Depart July 30, 2009 counsel; by proceeding on appeal without consult cision was withheld, child s appellate counsel was spondent. 64 A.D.3d 1092, $82 N.Y.S.2d 773, 2009 WL NY,2009. HEADNOTE 64 A.D.3d 1092, 882 N.Y.S.2d 773 ney was assigned to represent child. the motion and also dismissed the visitation peti The child is represented by a different attorney on tion counter to that taken by the attorney represent tion at the time the trial from his review the trial level or at the appellate level, this responsibil ing the child in Family Court. While taking a differ the representation any client, whether it be at the in establishing a system for providing legal repres ition to the court (seefamily Ct Act 241). As with on behalf the child. test to establish that he was the biological father After conducting a hearing, Family Court granted menced this paternity proceeding, seeking a DNA and the mother divorced in 2007, petitioner com this appeal, who filed a brief in **2 support an one the primary obligations the attorney for affirmance Family Court s order, which is a posi ted and incarcerated. The mother and respondent petition based on the ground equitable estoppel. cessarily unusual, the child s appellate attorney ap tions from the court, revealed that he had neither met nor spoken with the child. He explained that, while he did not know the child s position on this would be in the 11 1/2 -year-old child s best in terests. entation to children, the Family Ct Act identifies, as peared at oral argument and, in response to ques record and decided that supporting an affirmance month, petitioner assaulted respondent, was arres were married several days later and the subject child was born in October After respondent itation. The mother moved to dismiss the paternity appeal, he was able to determine his client s posi also engaged in a sexual relationship with respond ent Paul V. (hereinafter respondent). The following the subject child and, in addition, petitioned for vis tion. Petitioner appeals. No appeal has been taken ent position on behalf a child on appeal is not ne the child, helping the child articulate his or her pos al relationship. At *1093 that time, the mother was Page 21 26

76 tion, regardless the opinion the attorney. The In October 2007, the Administrative Board the counsel, is generally a straightforward obliga court, once it has been determined with the advice (Cite as: 64 A.D.3d 1092, 882 N.Y.S.2d 773) 64 A.D.3d 1092 ity requires consulting with and counseling the cli 64 A.D.3d 1092 ent. Moreover, expressing the child s position to the Page 2 ards for Attorneys Representing Children in New tion Parental Rights Proceedings [June 2007]). York Child Protective, foster Care, and Termina http ://web2.westlaw.com/print/printstream.aspx?destinationatp&vr2. O&pridia /7/ the argument the appeal suffered from any in- the child to the extent and in a manner consistent the options available to the child, and may recom the child (22 NYCRR 7.2 [d] [3]). In such situ the child s articulated wishes if the child wants the in a substantial risk imminent, serious harm to terests and that the attorney should explain fully terests (22 NYCRR 7.2 [dl [2]). The rule further if the attorney for the *1094 child believes that ded]) and that, in order to determine the child s pos with the child s capacities (22 NYCRR 7.2 [di [1]) The rule also states that the attorney for the child what the child wants is not in the child s best in child s position (22 NYCRR 7.2 [d] [emphasis ad ition, the attorney must consult with and advise child s attorney must zealously advocate the quency and person in need supervision cases, the contrary to the child s wishes when he or she is for knowing, voluntary and considered judgment, or ations the attorney must still inform the court [2000J,lv denied95 NY2d 764 [2000]). The New York State Bar Association Standards for rep sult with and counsel the child and to provide cli Bar Assn Standards for Attorneys Representing resenting children, including the obligation to con ent-directed representation (see generally NY St ter Carbulleira v $humway, 273 AD2d 753. that in all proceedings other than juvenile delin should be directed by the wishes the child, even mend to the child a course action that in the at advises that the attorney representing the child would be justified in advocating a position that is convinced either that the child lacks the capacity that following the child s wishes is likely to result attorney to do so (22 NYCRR 7.2 [d] [3]; see Mat resenting children strike a similar theme in under scoring the ethical responsibilities attorneys rep Children in Custody, Visitation and Guardianship Proceedings [June 2008]; NY St Bar Assn Stand- Rules the Chief Judge (22 NYCRR 7.2) direct torney s view would best promote the child s in representation the child promptly upon being no appearance when feasible; (3) [cjonsult with and cumstances, and remain accessible to the child. proceedings throughout. It appears that none child who was 11 1/2 years age at the time as to be aware and respond to the child s con est practical opportunity, and prior to the first court and provide initial services to the child at the earli not limited to the obligation to: (1) [c]ommence the proceeding, maintain contact with the child so for the Child, which outlines the necessary steps apply equally to appellate counsel, include but are advise the child regularly concerning the course ceived meaningful assistance appellate counsel ( was, at *1095 the least, entitled to consult with and have changed, and to explore whether to seek an there is nothing in the record to indicate that the peal family Court s order. Likewise the child taken by the attorney for the child in family Court, be counseled by his assigned attorney, to have the Jamie TT., 191 AD2d 132, [1993]). He 1040 [2005J,lv denied5 NY3d 706 [2005];Matter titled Summary Responsibilities the Attorney tified the appointment; (2) [cjontact, interview appellate process explained, to have his questions answered, to have the opportunity to articulate a extension time within which to bring his own ap Moreover, while the record reflects the position DominiqueA.W., 17 AD3d at ). Courts New York issued a policy statement, en that form the core effective representation children. These enumerated responsibilities, which cerns and significant changes in the **3 child s cir Clearly, the child in this proceeding has not re see Matter Dominique A. W. 17 AD3U 1038, position which with the passage time may was entitled to be appraised the progress the these services was provided to the child (see Matter Page 22 26

77 should have met with the child and should have firmity which might limit his ability to make a attorney should take on his behalf. Indeed, absent NYCRR 7.2 (d) (3), the appellate attorney herein any the extenuating circumstances set forth in 22 reasoned decision as to what position his appellate (Cite as: 64 A.D.3d 1092, 882 N.Y.S.2d 773) 64A.D.3d A.D.3d 1092 Page 3 http ://web2.westlaw.comlprint/printstream.aspx?destinationatp&vr=2.0&pridia /7/2014,0 END OF DOCUMENT WL N.Y. Slip Op Slip Op , 882 N.Y.S.2d Matter Mark T. v Joyanna U. N.Y.S.2d WL N.Y N.Y. Slip Op , A.D.3d 1092, 882 N.Y.S.2d WL NY,2009. Copr. (c) 2014, Secretary State, State New York new counsel to be assigned to represent the child on this appeal. Ordered that the decision is withheld, appellate counsel for the child is relieved assignment and Spain, J.P., Lahtinen, Stein and Garry, JJ., concur. cision this Court will be withheld. any issue that the record may disclose, and the de will be assigned to represent the child to address relieved his assignment, a new appellate attorney Accordingly, the child s appellate counsel will be 191 AD2U at ). By proceeding on the appeal without consulting and child s best interests (see22 NYCRR 7.2 [d] [2]). his essential obligation (see Matter Jamie IT., believed that what the child wanted was not in the advising his client, appellate counsel failed to fulfill been directed by the wishes the child, even if he Page 23 26