Wednesday, October 28, 2015


Viscuso v. Viscuso, 129 A.D.3d 1679, 12 N.Y.S.3d 684 (Fourth Dept. 2015):

"In appeal No. 1, the mother contends that the Attorney for the Child (AFC) violated her ethical duty to determine the subject child's position and advocate zealously in support of the child's wishes, because the AFC advocated for a result that was contrary to the child's expressed wishes in the absence of any justification for doing so. We reject that contention. The Rules of the Chief Judge provide that an AFC "must zealously advocate the child's position" and that, "[i]f the child is capable of knowing, voluntary and considered judgment, the [AFC] should be directed by the wishes of the child, even if the [AFC] for the child believes that what the child wants is not in the child's best interests" (22 NYCRR 7.2[d][2]; see Matter of Swinson v. Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d 862). A contrary rule arises where, as here, "the [AFC] 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 of imminent, serious harm to the child[. In such circumstances, the AFC] would be justified in advocating a position that is contrary to the child's wishes" (22 NYCRR 7.2[d][3]; see generally Matter of Carballeira v. Shumway, 273 A.D.2d 753, 755–756, lv denied 95 N.Y.2d 764). Here, "the evidence supports the court's conclusion that ‘to follow [the child's] wishes would be tantamount to severing her relationship with her father, and [that] result would not be in [the child's] best interest[s]’ " (Matter of Marino v. Marino, 90 AD3d 1694, 1696). We conclude that the mother's persistent and pervasive pattern of alienating the child from the father "is likely to result in a substantial risk of imminent, serious harm to the child" (22 NYCRR 7.2[d][3]), and we conclude that the AFC acted in accordance with her ethical duties."

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