NY CHILD CUSTODY - AFC RIGHT TO APPEAL

Matter of Abdoch v Abdoch, 2026 NY Slip Op 03219, (May 21, 2026 NY Court of Appeals):

"The question of whether an attorney for the child (AFC) has the authority to appeal a custody determination made pursuant to Family Court Act article 6 has divided the Appellate Division. We hold that under the plain language of the Family Court Act, an AFC has the authority to appeal a custody determination when the subject child is aggrieved. We therefore reverse the Appellate Division order dismissing the appeal and remit for further consideration.

In proceedings pursuant to article 6 of the Family Court Act, the child may be represented by an attorney appointed at the court's discretion (see Family Ct Act § 249 [a]). The AFC must zealously represent the child's interests, including by advocating for the child's wishes in Family Court (see 22 NYCRR 7.2 [d] [1]-[3]). When an AFC has been appointed by Family Court, their appointment continues without further action by that court when either "the attorney [*2]on behalf of the child files a notice of appeal, or . . . a party to the original proceeding files a notice of appeal" (Family Ct Act § 1120 [b]).

The Appellate Division Departments have split over whether an AFC can appeal a custody determination on behalf of their client when neither parent-party has appealed. The Second Department has endorsed the AFC's authority to appeal on behalf of their client, emphasizing that the Family Court Act expressly "recognizes that an [AFC] has the right to pursue an appeal on behalf of the child" because it permits the AFC to file a notice of appeal (Matter of Newton v McFarlane, 174 AD3d 67, 72-73 [2d Dept 2019]). The First and Third Departments have adopted the Second Department's reasoning (see Matter of Kylie P. [Carlos P.—Karen G.], 213 AD3d 463, 463 [1st Dept 2023]; Matter of Amber B. v Scott C., 207 AD3d 847, 848 n 1 [3d Dept 2022]). The Fourth Department has taken a different approach, dismissing appeals taken solely by an AFC when neither parent-party appeals or otherwise indicates their support for the child's appeal, reasoning that a "child in a custody matter does not have 'full-party status' " and therefore cannot force their parent to " 'litigate a petition that [they] ha[ve] since abandoned' " (Matter of Lawrence v Lawrence, 151 AD3d 1879, 1879 [4th Dept 2017], quoting Matter of McDermott v Bale, 94 AD3d 1542, 1543 [4th Dept 2012], and Matter of Kessler v Fancher, 112 AD3d 1323, 1324 [4th Dept 2013]; cf. Matter of Muriel v Muriel, 228 AD3d 1345, 1346-1347 [4th Dept 2024] [reaching the merits of an AFC's appeal because the mother had attempted to file her own appeal and supported the AFC's appellate arguments]).

This appeal concerns a Family Court proceeding involving mother, father, and their four children. Mother and father had an agreed-upon custody order providing that the children lived primarily with mother. Father petitioned to modify the custody order, and mother opposed in a competing petition. The attorney appointed to represent the four children opposed father's petition and advocated that the children wished to continue living primarily with mother. Family Court issued an order determining that modification was warranted and awarding the parents joint custody "with designated zones of influence" and shared residency. The AFC noticed an appeal from Family Court's order. Although mother did not file her own appeal, she appears to have filed a letter with the Appellate Division supporting the children's appeal. Father did not appear in connection with the appeal. The Appellate Division dismissed the appeal, following Fourth Department precedent holding that children in custody matters cannot appeal independent of [*3]the parent-parties (see 235 AD3d 1251, 1251 [4th Dept 2025], citing Lawrence, 151 AD3d at 1879). We granted the AFC leave to appeal to this Court (see 44 NY3d 902 [2025]).

We hold that the Family Court Act authorizes an AFC to appeal on behalf of their client. Family Court Act § 1120 (b) provides that the AFC's appointment continues when "the attorney on behalf of the child files a notice of appeal." In turn, section 1115 provides that an appeal is taken by filing a notice of appeal, which begins the appellate process (see Family Ct Act § 1115). Reading these two sections in harmony, the Family Court Act clearly authorizes an AFC to appeal a Family Court decision on behalf of their client (cf. Matter of Marian T. [Lauren R.], 36 NY3d 44, 49 [2020], quoting Matter of Mestecky v City of New York, 30 NY3d 239, 243 [2017] [when " 'statutory language . . . is but one component in a larger statutory scheme, it must be analyzed in context and in a manner that harmonizes the related provisions and renders them compatible' "]). To hold otherwise would render section 1120 (b)'s relevant language without practical effect.

The Family Court Act plainly authorizes an AFC to appeal on behalf of the subject child even though the child is not a full party to the custody proceedings. However, the subject child—like any appealing party—must still meet the CPLR's aggrievement requirement and other applicable jurisdictional requirements (see CPLR 5511 [only an "aggrieved party" may appeal]; Family Ct Act § 165 [a] [Family Court proceedings follow the provisions of the CPLR unless a different procedure is set forth in the Family Court Act]). Here, the children were aggrieved as the AFC argued against modifying the original custody order designating mother as the primary custodial parent and advocated that the children wished to remain primarily with her, but Family Court modified the custody order by awarding mother and father joint custody and shared residency.

We hold only that an AFC is authorized to appeal a custody determination on behalf of an aggrieved child. We have no occasion to address how a parent's participation or failure to participate in an appeal may bear on other issues raised on such an appeal.

Accordingly, the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division for consideration of the facts and issues raised but not determined on appeal to that Court.

Order reversed, without costs, and matter remitted to the Appellate Division, Fourth Department, for consideration of the facts and issues raised but not determined on appeal to that Court. Opinion by Judge Singas. Chief Judge Wilson and Judges Rivera, Garcia, Cannataro, Troutman and Halligan concur.

Decided May 21, 2026"

NY CHILD WELFARE - SUSPENDED JUDGMENT

My child welfare work is in Massachusetts (where I also practice). A “suspended judgment” is a distinct, express dispositional option in New York under FCA §1053(a)—but Massachusetts Juvenile Court does not have an equivalent statutory disposition by that name. While not labeled “suspended judgment,” perhaps Massachusetts judges can achieve similar results through an adjudication with conditions:  a) Court adjudicates b) Leaves child at home or in current placement c) Orders services and compliance d) Sets a review hearing e) Retains jurisdiction.

MATTER OF AN ARTICLE 10 NEGLECT PROCEEDING ADMIN. FOR CHILDREN'S SERVS.-BRONX v. AT, 2025 NY Slip Op 25257 - Bronx Family Court 2025:

"ANGEL CRUZ, J.

The central issue in this dispositional hearing is whether to impose a suspended judgment or allow the finding of neglect to remain against Respondent A.T., based on her admitted use of excessive corporal punishment against her son, N.G. The dispositional terms concerning her spouse, Respondent J.J., are not contested.^[1]

At the September 4, 2025, hearing, Respondent A.T. testified that she is employed by the New York City Police Department (NYPD) for 17 years—initially as a police officer and later as a detective. However, following the neglect proceedings and her related criminal arrest, she was demoted to police officer, suspended, for 30 days, without pay, and placed on modified duty, performing only administrative tasks. She also faces internal disciplinary charges and has been the subject of multiple online and print media reports. (See: NY Daily News, "Manhattan cop charged with whipping her young son, 10, with belt: DA," last visited Sept. 5, 2025; Patch, "Washington Heights Cop Arrested for Whipping Her Child," posted Feb. 21, 2025; NY12, "NYPD officer arrested, facing assault and child endangerment charges," posted Feb. 18, 2025.)

Although the court found portions of Respondent's testimony at the dispositional hearing was evasive and inconsistent, she did acknowledge that her relationship with N.G. is currently strained due to her own actions. She expressed a desire to rebuild their bond through supervised visitation and recognized that this process would require time and effort.

On direct examination, Responded stated:

"I feel bad for my son and the way that he feels now. I deeply regret that, and I do feel very remorseful for everything that he's gone through as well as what my family has gone through." "This will never happen again because I now have a different way of seeing things, thinking about discipline." "My goal is to get to where it once was and better than where it once was, but currently right now it's very strained and it's gonna be a lot of work on both of our parts."

***

She further testified that she completed 15 sessions of anger management, parenting classes, and individual therapy to develop healthier coping mechanisms.

Under New York law, child protection proceedings are remedial—not punitive—and are designed to serve the best interests of children by addressing threats to their welfare. See Sarahi O. Josefina D.L., 70 Misc 3d 1209(A); (Bronx Co. Fam. Ct. 2020); In Re Leenasia C., 154 AD3d 1 (1st Dept. 2017).

A suspended judgment is a dispositional option under FCA§1053(a), intended to provide Respondent who complies with the court's dispositional plan the opportunity to later seek dismissal of the neglect finding and petition. See In re M.N., 16 Misc 3d 499 (Monroe Co. Fam. Ct. 2020).

This relief is not a reward nor does it condone the underlying conduct. Rather, it recognizes that in certain circumstances, the child's best interests are served by allowing the parent a clean slate. See In re Danielle A., 153 AD3d 426 (1st Dept. 2017); In re M.N., 16 Misc 3d 499 (Monroe Co. Fam. Ct. 2020).

In determining whether to grant a suspended judgment, the court must consider several factors, including:

• Whether the parent has adequately addressed the issues leading to the child's removal;

• The respondent's prior history;

• The seriousness of the offense;

• Demonstrated remorse;

• Compliance with court-ordered services;

• Efforts to rehabilitate the parent-child relationship See In re Maximus H., 25 Misc 3d 1241(A)(Monroe Co. Fam. Ct. 2009).

ACS and the Attorney for the Child (AFC) argue that although Respondent A.T. expressed remorse and completed services, she violated court orders by pressuring N.G. to discuss the case during visits, necessitating a return to supervised visitation. They contend this behavior reflects a lack of genuine insight and undermines her eligibility for a suspended judgment.

However, counsel appears to overlook the remedial nature of child protection proceedings. A suspended judgment is not granted for the benefit of the respondent, but rather for the benefit of the child. A gainfully employed parent who can financially support the household serves both the child's welfare and broader public policy.

After weighing the relevant factors and considering the testimony and argument presented at the September 4, 2025, hearing, the court exercises its discretion and finds that granting Respondent A.T. a suspended judgment is in the best interest of the child and society. This decision is made over the objections of ACS and the AFC.

While the AFC correctly notes that the Respondent may seek future review of the dispositional terms under FCA §1061, including retroactive relief and vacatur of the neglect finding, this court finds that the immediate impact on Respondent's employment and career advancement outweighs the rationale for delaying such relief. As a first-time Respondent who has accepted responsibility and endured significant public scrutiny, and effects on her employment, the consequences she has already faced—including criminal sanctions and reputational damage—are sufficient and to continue to impede her employment is not in the best interest of this family.

Ultimately, the purpose of this disposition is remedial, not punitive.

Accordingly, the court imposes the following DISPOSITIONAL TERMS:

1. Release D.J. (jointly with Respondent J.J.);

2. Release of N.G. to the NRF, Mr. G. Visits shall be supervised with the discretion to expand on notice to the AFC;

3. Six-month ACS supervision for A.T. with a suspended judgment scheduled to expire March 3, 2026, at which time the court will dismiss the petition contingent on full compliance. ACS shall provide progress reports every 30 days;

4. Comply w/ACS supervision including announced and unannounced visits with a limited order of protection that includes no corporal punishment against D.J. or N.G. be exercised;

5. Comply with reasonable referrals on notice to Respondent counsel and sign all necessary releases to confirm compliance;

6. Required services: anger management, parenting skills and individual therapy, preventive services, compliance with limited protection order.

The parties are directed to appear for a settlement conference on October 28, 2025, at 11AM in Part 8 on the following dockets: V-XXXXX-25/25A and 0-XXXXX-25, and V-XXXXX-25.

[1] Release of D.J. and comply with preventive services;

2. Comply with ACS supervision including announced and unannounced visits with a limited order of protection that states no corporal punishment against D.J.;

3. Comply with reasonable referrals on notice;

4. 3-month supervision — suspended judgment to expire November 3, 2025."

AFC AND SUBSTITUTED JUDGMENT AND PARENTAL ALIENATION

AFC is attorney for the child....A quick review of psychiatric studies shows that there is a general consensus that parental alienation results in many long-term, negative consequences for a child. Depression, anxiety, poor self-esteem, lack of trust in relationships, and self-defeating behavior are just some of the deleterious consequences. And one can argue, that is a serious harm to the child.

Thompson v. Thompson, --- A.D.3d ---, --- N.Y.S.3d --- (Fourth Dept. 2023)(2023 WL 3160145)(Apr 28, 2023):

"We also reject the mother’s contention that the AFC improperly substituted her judgment for that of the children. Pursuant to 22 NYCRR 7.2 (d), an attorney for the child must zealously advocate the child’s position. However, an attorney for the child is entitled to advocate a position that is contrary to a child’s wishes when the attorney is convinced ... that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child (22 NYCRR 7.2 [d] [3]). In circumstances when an attorney for the child advocates for a position that is contrary to the child’s wishes, the attorney is still required to inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position (22 NYCRR 7.2 [d] [3]). Here, the children’s wishes were made known to the court during the Lincoln hearing. Further, although the AFC substituted her judgment for that of the children, she was entitled to do so because the record establishes that the mother engaged in a pattern of alienating the children from the father, which was likely to result in a substantial risk of imminent, serious harm to the children (see Matter of Vega v. Delgado, 195 A.D.3d 1555, 1556, 145 N.Y.S.3d 907 [4th Dept. 2021]; Matter of Grabowski v. Smith, 182 A.D.3d 1002, 1004, 123 N.Y.S.3d 313 [4th Dept. 2020], lv denied 35 N.Y.3d 910, 2020 WL 5047587 [2020]; Matter of Viscuso v. Viscuso, 129 A.D.3d 1679, 1680-1681, 12 N.Y.S.3d 684 [4th Dept. 2015])."

AN AFC MUST ZEALOUSLY ADVOCATE FOR CHILD

MATTER OF SLOMA v. Saya, 2022 NY Slip Op 6587 - NY: Appellate Div., 4th Dept. 2022:

"It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the petition is reinstated, and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following memorandum: In this proceeding pursuant to Family Court Act article 6, the Attorney for the Child (AFC), as limited by her brief, appeals from an order insofar as it dismissed petitioner father's petition seeking to modify the parties' custody arrangement. Family Court determined at the conclusion of the father's presentation of evidence at a trial that he failed to establish a change in circumstances and granted respondent mother's motion to dismiss the father's petition. Initially, we agree with the AFC that, under the circumstances of this case, she has standing to appeal the order (see Matter of Newton v McFarlane, 174 AD3d 67, 71-74 [2d Dept 2019]; cf. Matter of Lawrence v Lawrence, 151 AD3d 1879, 1879 [4th Dept 2017]; Matter of Kessler v Fancher, 112 AD3d 1323, 1323 [4th Dept 2013]).

We agree with the AFC that the child received ineffective assistance of counsel. We therefore reverse the order insofar as appealed from, reinstate the petition, and remit the matter to Family Court for a new trial. Section 7.2 of the Rules of the Chief Judge provides that, in proceedings such as an article 6 custody proceeding where the child is the subject and an AFC has been appointed pursuant to Family Court Act § 249, the AFC "must zealously advocate the child's position" (22 NYCRR 7.2[d]). "[I]n ascertaining the child's position, the [AFC] must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances" (22 NYCRR 7.2[d][1]). "[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] believes that what the child wants is not in the child's best interests" (22 NYCRR 7.2[d][2]). There are two exceptions, not relevant here, where the child lacks the capacity for knowing, voluntary and considered judgment, or following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child (see 22 NYCRR 7.2[d][3]). In those instances, the AFC is justified in advocating for a position that is contrary to the child's wishes (see id.).

Moreover, a child in an article 6 custody proceeding is entitled to effective assistance of counsel (see Matter of Rivera v Fowler, 112 AD3d 835, 837 [2d Dept 2013]; Matter of Sharyn PP. v Richard QQ., 83 AD3d 1140, 1143 [3d Dept 2011]; Matter of Ferguson v Skelly, 80 AD3d 903, 906 [3d Dept 2011], lv denied 16 NY3d 710 [2011]), which requires the AFC to take an active role in the proceeding (see Matter of Payne v Montano, 166 AD3d 1342, 1343-1345 [3d Dept 2018]; Rivera, 112 AD3d at 837).

Here, the AFC at trial made his client's wish that there be a change in custody known to the court, but he did not "zealously advocate the child's position" (22 NYCRR 7.2[d]; see Payne, 166 AD3d at 1345; see also Matter of Brian S. [Tanya S.], 141 AD3d 1145, 1147 [4th Dept 2016]). He did not cross-examine the mother, the police officers, or the school social worker called by the father, and we agree with the AFC on appeal that the trial AFC's cross-examination of the father was designed to elicit unfavorable testimony related to the father, thus undermining the child's position (see Silverman v Silverman, 186 AD3d 123, 127-128 [2d Dept 2020]; Brian S., 141 AD3d at 1147-1148). His questioning also seemed designed to show that there was no change in circumstances since the entry of the last order. Further, he submitted an email to the court in response to the mother's motion to dismiss in which he stated his opinion that there had been no change in circumstances, which again went against his client's wishes (see generally Brian S., 141 AD3d at 1147). While we conclude that the AFC's actions may have been the result of good intentions, we further conclude that he did not "zealously advocate the child's position" (22 NYCRR 7.2[d]), and thus the child was denied effective assistance of counsel (see Silverman, 186 AD3d at 127-129; Payne, 166 AD3d at 1345; cf. Rivera, 112 AD3d at 837; Matter of Venus v Brennan, 103 AD3d 1115, 1116-1117 [4th Dept 2013]).

In light of our determination, we see no need to address the AFC's further contention on appeal that the father established a change in circumstances."

GRANDMA AND CHILD

In this case, the parents were unmarried, and the father's mother (grandma) raised the child although the mother has had continuous contact. Grandma applied for custody (no information on father but assume he is out of the picture for whatever reason) and apparently the child (who was 5 years old at the time) preferred staying with grandma. Family Court awarded custody to the mother with visitation to grandma but obviously the child's preferences (even a 5 year old) motivated the attorney for the child to appeal the Family Court decision.

Matter of Amber B. v. Scott C.,  Date filed: 2022-07-07, Court: Appellate Division, Third Department,  Judge: Presiding Justice Elizabeth A. Garry,  Case Number: 533977:

"The grandmother has been a significant source of support and has clearly made a substantial positive impact on the child's life. Without this support, the child's life would have been tumultuous. The AFC emphasizes the psychological bonding between the grandmother and the child, and we recognize the importance of that bond. Nonetheless, "[a] parent cannot be displaced merely because the child has bonded psychologically with a nonparent" (Matter of Sellers v Brown, 155 AD3d 1047, 1049 [2017], lv denied 31 NY3d 901 [2018]; see Matter of Cortright v Workman, 304 AD2d 862, 863 [2003])."

MALPRACTICE AND THE AFC

LoPresti v. Galchus, Date filed: 2022-03-31, Court: Supreme Court, Queens, Judge: Justice Carmen Velasquez, Case Number: 717561/20:

"Upon the foregoing papers it is ordered that this motion by the defendant and cross motion by the plaintiff are decided as follows: This is a legal malpractice action against the defendant, the court appointed attorney for the minor child in a custody proceeding. On April 25, 2018, the plaintiff commenced a proceeding in Family Court, Queens County, to modify a custody agreement she had with her ex-husband, Philip LoPresti, regarding their minor child, Sofia LoPresti. Plaintiff sought to relocate with the child to New Orleans. Philip LoPresti opposed the Family Court petition and also executed his own petition in which he sought to be awarded primary residential/physical custody of Sofia. In May 2018, defendant was assigned by the Family Court as the Attorney for the child, Sofia. At the Family Court hearing, defendant stated that it was the child’s preference to relocate with the plaintiff to New Orleans.

A trial was held before a Referee in Family Court on July 18-19, 2020. A reporter was not present but the proceeding was transcribed via an audiotape made of the trial. Defendant maintains that the recording failed to provide an accurate and audible transcription. On July 24, 2018, the court ruled that LoPresti was to be given residential custody of Sofia. Plaintiff filed a Notice of Appeal, but a different attorney represented Sofia for the appeal, but the defendant continued to represent Sofia in Family Court. On October 2, 2019, the Appellate Division, Second Department, remitted the matter to Family Court for a new hearing before a different Referee. The Appellate Division found that defendant, inter alia, did not properly advocate for the interests of Sofia. The parties thereafter entered into a stipulation allowing Sofia to relocate to New Orleans with her mother until July 2020.

Plaintiff commenced the instant action to recover damages for legal malpractice as well as punitive damages. The complaint alleges that the defendant failed to fulfill his obligations as a court appointed attorney for Sofia. Specifically, the complaint alleges that defendant failed to zealously advocate for Sofia, failed to inform the court of her position on relocation and failed to assist Sofia in articulating her position to the court. The complaint further alleges that but for defendant’s negligence and failure to advocate for his client, custody never would have been transferred to Lopresti. Defendant now moves to dismiss the complaint pursuant to CPLR 3211(a). Defendant contends that plaintiff lacks standing to bring this action since, as a law guardian, he is shielded by quasi-judicial immunity. Plaintiff cross moves for summary judgment.

The role of the Law Guardian or Attorney appointed by the Family Court is to represent the wishes of the child and to zealously advocate for the child’s best interest. (Carballeira v. Shumway, 273 AD2d 753, 755 [3d Dept 2000]; Matter of Dewey S., 175 AD2d 920, 921 [2d Dept 1991]; B.A. v. L.A., 196 Misc 2d 86, 96 [Fam Ct, Rockland County 2003].) The role is also to aid the court in arriving at an appropriate disposition. (Matter of Apel, 96 Misc 2d 839, 842-843 [Fam Ct, Ulster County 1978].)

The plaintiff herein lacks standing to bring this action against the defendant, the Law Guardian. There is no privity between the plaintiff and the defendant. (see Bluntt v. O’Connor, 291 AD2d 106, 114 [4th Dept 2002].) Indeed, the defendant was appointed to assist the child in presenting her views and her wishes. He was not representing the plaintiff in any capacity, and no attorney-client relationship existed between them. As such, the defendant is entitled to quasi-judicial immunity.

Although the court is aware of the October 2, 2019 Appellate Division decision stating that the defendant did not advocate for the position of the child herein, the court cannot use this as a basis to allow the plaintiff to maintain a malpractice action against the defendant. To allow a malpractice lawsuit against the defendant in these types of circumstances would discourage attorneys from serving as court appointed counsel. (see Bluntt v. O’Connor, 291 AD2d at 118-119.) As noted by the Supreme Court of Wisconsin, without the assistance and impartial judgment of a guardian ad item, the “court would have no practical or effective means to assure itself that all of the essential facts have been presented untainted by the self-interest of the parents and children.” (Paige K.B. v. Molepske, 219 Wis 2d 418, 434, 580 NW2d 289 [Sup Ct, Wisconsin 1998].) Moreover, the court wisely noted that immunity in these situations is necessary “to avoid the harassment and intimidation that could be brought to bear on GALs by those parents and children who may take issue with any or all of the GAL’s actions or recommendations.” (Paige K.B. v. Molepske, 219 Wis 2d at 434.)

Other courts have taken similar positions. One court has stated that “[f]ear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.” (Ward v. San Diego County Dept. of Social Servs., 691 F Supp 238, 240 [SD Ca 1988].) Further, court-appointed experts, “faced with the threat of personal liability, will be less likely to offer the disinterested objective opinion that the court seeks.” (Winchester v. Little, 996 SW2d 818, 827 [Sup Ct, Tenn 1999].) Moreover, “[a] failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings.” (Kurzawa v. Mueller, 732 F2d 1456, 1458 [6th Cir 1984].) Many of these cases are based on the holding of the Supreme Court that “the common law provided absolute immunity from subsequent damages liability for all persons — governmental or otherwise — who were integral parts of the judicial process.” (Briscoe v. LaHue, 460 US 325, 335 [1983].)

This court agrees with these opinions and finds that permitting a malpractice case to proceed against the defendant herein would go against public policy. It would subject these attorneys to possible unnecessary litigation for performing an extremely important function for the court.

Accordingly, this motion by defendant to dismiss the complaint is granted, and the action is dismissed."

WHEN THE ATTORNEY FOR THE CHILD (AFC) FAILS TO PERFORM THEIR DUTIES

Silverman v. Silverman, 2020 NY Slip Op 4338, NY: Appellate Div., 2nd Dept. July 29, 2020:

"On appeal, the defendant contends, inter alia, that the AFC improperly substituted judgment and took a position contrary to the wishes of her clients. We agree.

An AFC is required to "zealously advocate the child's position" (22 NYCRR 7.2[d]; see Matter of Young v Young, 161 AD3d 1182, 1182). In order to determine the child's wishes, the AFC must "consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances" (22 NYCRR 7.2[d][1]). The rules further state that "the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child's best interests' and that the [AFC] should explain fully the options available to the child, and may recommend to the child a course of action that in the [AFC]'s view would best promote the child's interests'" (Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094, quoting 22 NYCRR 7.2[d][2]).

An AFC would be justified in substituting judgment and advocating a position that is contrary to the child's wishes only if 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" (22 NYCRR 7.2[d][3]; see Matter of Brian S. [Tanya S.], 141 AD3d 1145, 1147). "In such situations the attorney must still inform the court of the child's articulated wishes if the child wants the attorney to do so'" (Matter of Mark T. v Joyanna U., 64 AD3d at 1094, quoting 22 NYCRR 7.2[d][3]).

As retired Justice Sondra Miller wrote in a recent article, entitled "The Voice of the Child: Critical and Often Compelling," "Significant decisional precedent (trial and appellate) before and after the Matrimonial Commission Report reflected acceptance of [the] role of the attorney for the child as representing the child's wishes, not the opinion of the child's attorney as to his [or her] best interests" (Sondra Miller, The Voice of the Child: Critical and Often Compelling, NYLJ [online], Sept. 12, 2019).

Recently, this Court reinforced the role of the AFC in an opinion written by Presiding Justice Scheinkman wherein the mother contested the AFC's standing to appeal on behalf of the subject child from a custody determination. In Matter of Newton v McFarlane (174 AD3d 67, 74-75), Presiding Justice Scheinkman wrote,

"Substantively, and more importantly, it cannot be denied that a teenaged child has a real and substantial interest in the outcome of litigation between the parents as to where the child should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child's parents. As Chief Judge Charles D. Breitel stated in the landmark case of Matter of Bennett v Jeffreys (40 NY2d 543, 546 [1976]): a child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too, some of which are of . . . constitutional magnitude.' Among those rights is the child's right to have his or her best interests, and his or her position concerning those interests, given consideration by the court."

In this case, the AFC advised the Supreme Court that the children wanted to spend daytime with the plaintiff but they wanted to spend overnights with the defendant. They wanted residential custody to remain with the defendant. The AFC informed the court of her clients' position at the beginning of the hearing and even stated the following:

"The Appellate Division governing my representation of children has made the rules very clear. Unless I can demonstrate that my clients suffer from some type of mental or physical handicap, that they're not articulate, that they cannot think properly, or that they want something which is not good for them, I cannot substitute judgment. Do I think these children should have a relationship with both parents? I absolutely do. Can I substitute judgment for what my clients want based on what I think? The Appellate Division made it clear. I cannot."

Nevertheless, the AFC's representation was in direct contravention of her clients' stated parameters. Throughout the course of the proceedings, she failed to advocate on behalf of her clients, who were 13 and 11 years old at the time of the hearing, and who were both on the high honor roll and involved in extracurricular activities. The AFC actively pursued a course of litigation aimed at opposing their stated positions. She joined the plaintiff in opposing the introduction of evidence and witnesses in support of the defendant's case. When the defendant sought to introduce evidence in defense of the plaintiff's allegations that the defendant provided the children with unnecessary medical care, the AFC joined the plaintiff in opposing the introduction of the defendant's evidence. The AFC also opposed the introduction of evidence that may have supported one child's claim that the plaintiff attempted to strangle her. The AFC objected to the testimony of school personnel for the purpose of explaining the children's seemingly excessive school absences. The AFC's questions of the plaintiff during cross-examination were designed to elicit testimony in support of the plaintiff's case, in opposition to her clients' wishes. Her questions of Goldman, the psychologist chosen by the parties to provide therapeutic parental access, included whether one child's alleged parentification interfered with the other child's relationship with the plaintiff. Her questions were aimed at supporting the plaintiff in his quest for residential custody. The AFC objected to the introduction of witnesses and evidence favorable to the defendant's case, but she did not make similar objections to the plaintiff's evidence. Upon successfully arguing to preclude the defendant's proffered evidence, the AFC proceeded to use the defendant's lack of evidence to support the plaintiff's positions. She also failed to object to the Supreme Court's decision to limit the amount of time for the defendant to present her case. Not only did the AFC join the plaintiff in supporting his case, she also failed to take an active role in the proceedings by presenting evidence and witnesses on behalf of her clients (see Matter of Payne v Montano, 166 AD3d 1342, 1345).

The AFC's failure to support her clients' position is particularly troubling due to the allegations of domestic violence made by both the defendant and the children. The defendant advised Goldman during the first of her two sessions with him that the plaintiff had physically abused her and that the children had witnessed him choking her and grabbing her arm. She was concerned that the children did not want to go with the plaintiff because they were afraid of him. In accordance with the stipulation, Goldman was retained by the parties for the purpose of therapeutic parental access with the plaintiff and the children. To this end, Goldman met with the plaintiff approximately 26 times and often with the children as well. Goldman testified that he had significant expertise regarding issues of "parental alienation syndrome." The Supreme Court found Goldman to be an expert as a "behavioral [psychologist] and not as a specialist in the field of parental alienation syndrome, since it is not recognized by the courts of the State of New York." However, Goldman testified at great length as to the defendant's "alienating behavior." Had the AFC engaged in a more robust representation of her clients, the issues of domestic violence as it relates to alienating behavior could have been more fully presented. For example, in support of her clients' wishes, the AFC might have called as a witness the forensic evaluator who prepared a report prior to the stipulation, wherein custody to the defendant was recommended. Instead, the AFC called no witnesses and presented no evidence.

When appearing before this Court for oral argument, the AFC stated that her clients were not doing well, but she hoped they would improve. Nevertheless, she continued to argue in support of residential custody to the plaintiff, in opposition to the wishes of her clients, who were 15 and almost 13 at the time.

The record establishes that neither of the exceptions to the rules regarding the AFC's duty are present here. There was no finding that the children lacked the capacity for knowing, voluntary, and considered judgment (see 22 NYCRR 7.2[d][3]). This exception generally applies to young children and children with disabilities (see Matter of Edmonds v Lewis, 175 AD3d 1040, 1041; Matter of Audreanna VV. v Nancy WW., 158 AD3d 1007, 1011). Here, the children were certainly not too young, nor was there sufficient evidence in the record that they suffered from a mental, physical, or emotional disability to such an extent that their ability to make a knowing, voluntary, and considered judgment was impaired. Hence, the children failed to receive meaningful assistance of counsel (see Matter of Mark T. v Joyanna U., 64 AD3d at 1094; Matter of Dominique A.W., 17 AD3d 1038, 1040; Matter of Jamie TT., 191 AD2d 132, 135-137).

While the Supreme Court found that the defendant had "over parentified the two girls," and that the children had "become totally dependent upon [the defendant]" and "creat[ed] a co-dependency between the [defendant] and/or their siblings," there was no evidence of imminent, serious harm to the children (see 22 NYCRR 7.2[d][3]). The AFC argued that the defendant's custody was detrimental to the normal social, emotional, and psychological development of the children. Although the plaintiff was concerned about the amount of school the children missed while in the defendant's custody, this, while not in the long-term best interests of the children, did not pose a substantial risk of serious imminent harm (see Matter of Brian S. [Tanya S.], 141 AD3d at 1148). Under these circumstances, it was improper for the AFC to substitute judgment and take a position that was contrary to the wishes of the children.

Moreover, "in determining custody, while the express wishes of children are not controlling, they are entitled to great weight, especially where their age and maturity would make their input particularly meaningful" (Matter of Cannella v Anthony, 127 AD3d 745, 746; see Matter of Samuel S. v Dayawathie R., 63 AD3d 746, 747). Here, the Supreme Court failed to take into account the stated preferences of the children, who were 13 and 11 years old at the time of the hearing, as some indication of their best interests.

Further, while not raised by either party, we take this opportunity to point out that in a case such as this, the better practice would have been to order an updated forensic evaluation of the parties and the children, particularly where issues of parental alienation, parentification, and Munchausen syndrome by proxy were raised (see E.V. v R.V., 130 AD3d 920, 921; Brown v Simon, 123 AD3d 1120, 1122; Stern v Stern, 225 AD2d 540, 541; Matter of Vernon Mc. v Brenda N., 196 AD2d 823, 825-826).

Conclusion

While a hearing court's determination is entitled to great weight and should not be set aside lightly (see Matter of Davis v Delena, 159 AD3d 900, 901), under the circumstances of this case, and for the reasons set forth above, the amended order is reversed insofar as appealed from, on the law and the facts, and the matter is remitted to the Supreme Court, Suffolk County, for the appointment of a new attorney for the children and a de novo hearing and new determination thereafter of that branch of the plaintiff's motion which was to modify the parties' so-ordered stipulation of settlement so as to award him residential custody of the parties' children."

CHILD CUSTODY, TEENAGERS & FORENSIC REPORTS

A child between 17 and 21 who has left home and refuses to obey parents' reasonable commands can be considered "emancipated" by a court. In that case, child support might not have to be paid. But what if the child is 14 but thinks like a 17 year old?

Clarence M. v Martina M.,  2020 NY Slip Op 20108,  Decided on May 11, 2020,  Supreme Court, Kings County,  Sunshine, J.:

"Procedural History
This Court is called upon to determine if it is appropriate for a 14-year-old child who has requested to see a report prepared by a forensic evaluator related to therapeutic visitation. The parties were divorced by Judgment of Divorce on April 12, 2019. There was an extensive [*2]stipulation on the eve of trial on the issue of custody. The parties agreed to joint custody with specific periods of parenting time for both parents. Thereafter and at present there has been extensive litigation post- judgment inter alia on the issue of a change of custody and allegations that the child who is 14 years old is refusing to see the Plaintiff- Father. There are also applications pending on the issues of Contempt which are the subject of a separate motion. The plaintiff is represented by privately retained counsel. The defendant and the child have been appointed counsel pursuant to Section 35 of the Judiciary Law. On consent Dr. Kelly Sykes P.H.D was appointed by the Court on October 24, 2019 "to coordinate and provide family therapy on allegations of alienation and the alleged resistance and refusal of [Redacted] to follow the schedule of parental access set forth in the Judgment of Divorce"

Plaintiff filed an emergency order to show cause [motion sequence #15] dated March 9, 2020 seeking the following relief: "(1) Determining that the subject children are not parties to this litigation with fundamental rights to automatically review copies of the pleadings, motion papers, forensic reports, other mental reports or status reports, affidavits, affirmations, statements of net worth and / or other litigation documents without leave of court which shall only be granted on application after an in camera review upon a showing that such disclosure is reasonably necessary for the child's attorney to do their job pursuant to 22 NYCRR § 7.2 and that such disclosure is not contrary to the child's best interest; and (2) Determining that the subject children are not entitled to and shall be prohibited from directly reading or receiving copies of the reports and other written communications from Dr. Kelly Sykes concerning the status and progress of family therapy in this matter as such disclosure is not in their best interest; and (3) For such additional relief as this court may deem just and proper.

The role of the Attorney for the Child is embodied in 22 NYCRR § 7.2 Function of the Attorney for the Child promulgated by order of the Chief Judge dated October 17, 2007 states as follows:

(a) As used in this part, "Attorney for the Child" means a[n attorney] appointed by family court pursuant to section 249 of 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 of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the Attorney for the Child must zealously defend the child.(d) In other types of 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 of the child's circumstances. (2) If the child is capable of knowing, voluntary and considered judgment, the Attorney for the Child should be directed by the wishes of 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 of 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 of 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 of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position.(effective October 17, 2007)

Plaintiff's Contentions Plaintiff argues that on March 5, 2020 he was informed that the Attorney for the Children shared some of the information in Dr. Sykes reports with the parties 14-year-old daughter. The Plaintiff further argues that after the child was given the information from the report that the child's attitude towards the Plaintiff and therapy greatly shifted. Plaintiff contends that showing the child any information provided by Dr. Sykes intended for the parties, the lawyers and the court is not appropriate or in the child's best interest. Plaintiff further contends that no litigation documents should be shown to the children, absent courts permission and only then after an in-camera review and a showing that the disclosure is necessary to meet the obligation under 22 NYCRR § 7.2 and in the child's best interest.

Counsel asserts that there has been a "regression" described by Dr. Sykes after a visit occurred once the child learned of what was in the report, that should not have occurred and cannot be ignored. The Plaintiff also states that it is no mere coincidence that after obtaining information from the report that the child now "hates" the therapist. The Plaintiff also brings to the Court's attention that Dr. Sykes in the March 9, 2020 report recommends that the child not be permitted to read the reports as they are written and intended for adults. The Plaintiff firmly believes that therapy with Dr. Sykes must continue, the Defendant must continue to bring the child to the sessions and any writings provided by Dr. Sykes should not be shared with the children without court permission

The Plaintiff asserts that pursuant to 22 NYCRR § 7.2 (d) (1) that there is no obligation for the Attorney for the Children to show any litigation documents to their clients as children are not parties to the litigation. Plaintiff believes that in this matter the child's position can be zealously advocated by the Attorney for the Child without the need to share the litigation documentation with the child and sharing the documents with the child is "developmentally inappropriate."

He further argues that "a child is not free to discharge their attorney, proceed pro se, select a different attorney or watch court proceedings" and therefore there are already clear limitations to the relationship between the children and the Attorney for the Children [FN1] .The Plaintiff contends that the cases put forth by both the Attorney for the Children and Defendant are not on point and easily distinguishable from the instant issue.

Plaintiff states that should the Attorney for the Children seek in the future to show any of the litigation documents to the children that she be required to seek the permission of the court upon a showing that disclosure of the litigation documentation is reasonably necessary under 22 [*3]NYCRR § 7.2 and is in the best interest of the children.

Defendant's Contentions Defendant argues that the doctrine of parens patriae powers have been exclusively applied to limit and/or define parent control over and access to their children and therefore the Defendant argues that the extension of and use of the doctrine of parens patriae beyond the protection from parents is an unauthorized and unlawful use of the doctrine when applied to a child's attorney client relationship.
The Defendant contends that Federal and States Constitutions generally bar injunctions against speech and any injunction which operates as prior restraint on expression bears "heavy presumption" against its constitutional validity. The Defendant asserts that the Court has the power of parens patriae to ensure that the Plaintiff and the Defendant do not make any remarks to the children that are against the children's "best interests". However, the Defendant further asserts that it is not the Court's function to prevent children, who have their own interests, of the effective representation of counsel including but not limited to the ability to fully participate, right to be fully informed, and ability to communicate openly between child and attorney as 22 NYCRR § 7.2 clearly states that the Attorney for the Children must be fully informed and zealously defend and directly advocate the clients position if the child is of knowing and voluntary judgment.

The Defendant contends that the Attorney for the Children and not the Court is in the superior position to know what the children's capabilities are and it is the Attorney for the Children who must make the proper determination as to whether the children are to be fully informed or not regarding the contents of therapeutic supervised reports. She contends that otherwise the Court would be interfering in the rights and relationship of the children and their attorney and would render the Attorney for the Children unable to zealously advocate for their clients without providing the children with the best available information in light of the children's' capabilities and ability to freely form her own strategy with her attorney. The Defendant asserts that is it not the Court's duty to interfere with the relationship between child and attorney by ordering the Attorney for the Children to undermine and withhold information from their clients who is owed a duty of loyalty regardless of whether the Plaintiff or Defendant believes that the information in the report may harm a child in some unknown way.

The Defendant posits that there is not anything in the reports by Dr. Sykes that would pose a threat to the child or is beyond the capacity of a fourteen-year-old child and would require the protection of the Court. Defendant contends that there was no damage done to the child and that even if the child's attitude does change after reading the report, it ignores the fact that the parents are able to freely change their behavior as a result of the reports as well. The Defendant further asserts that there was no showing of harm to the child due to the report and that the reports are there to provide insight to the family and provides suggestions on how to improve the family dynamics.

The Defendant submits that the Court relying on either the Plaintiff, the Defendant or the Court appointed expert's opinion on this issue would be an improper deferral to the recommendations of the Court appointed expert. The Defendant further submits that it is the Court's duty alone to determine if the Court has the power to interfere with the Attorney for the Children and the children's relationship pursuant to parens patriae regardless of the child's constitutional rights to an effective attorney and the ability to freely communicate with that attorney pursuant to the ethical rules that incorporate the United States Constitutional protections [*4]of the First and Sixth Amendments.

Attorney for the Children's Contentions The Attorney for the Children argues that the Plaintiff's application must be denied as the relief sought would create an interference between the Attorney for the Children and the Child which would prohibit the Attorney for the Children from representing the child's interest in the proceeding. The Attorney for the Children further argues that if the Plaintiff's relief is granted it would not be in the best interest of the child. The Attorney for the Children also contends that their would-be far-reaching effects empowering litigants to interfere with the Attorney for the Children and children's relationship, when parents do not agree with the position of the child and such interference could render the role of Attorney for the Children meaningless.

The Attorney for the Children states that the child's meaningful participation is vital and that the child's position must be protected. The Attorney for the Children further states that the child does not wish to continue in supervised therapeutic visitation and that the child expects the Attorney for the Children to zealously advocate for those visitations to be terminated. Counsel has determined that the child who wants to read the reports of Dr. Sykes is mature, insightful and suffers from no incapacity and therefore cannot substitute judgment for a competent 14-year-old child and deserves to be active and involved with the case to help advocate for what the child wants.

The Attorney for the Children further contends that she based her decision to allow the child to read the report on the age, maturity and the fact the child asked to see the report that there is no reason to not share the report with the child to come up with an appropriate litigation strategy. Counsel also argues that supervised visitation session reports that the child was included in are very different from those of a forensic report which often contain sensitive information. On behalf of the child counsel argues that in order to achieve the child's goal of terminating the therapeutic supervised visitation with the Plaintiff and Dr. Sykes and she cannot reasonably prepare without discussing the reports with the child.

In referencing the action by the Administrative Board of the Courts on October 4, 2007, the Administrative Board of the Courts approved the Statewide Guardian Advisory Committee's Summary Responsibilities of the Attorney for the Child, noting that the duties of Counsel will vary based on the circumstances surrounding the case which include consulting, advising and evaluating the legal remedies pursuant to the child's objectives. Counsel posits that without thorough consultation and preparation with the child she cannot effectively prepare and zealously argue on behalf of the child.

Counsel further argues that all attorneys review litigation documents and reports with clients and the Attorney for the Children should also duly prepare and review documents with their client to challenge contents and accuracy of the reports prior to advancing the child's position. Counsel contends that it would be malpractice to not inform their clients and must inform their clients in an age-appropriate way based on age and maturity which she did in this case and it is unreasonable to expect attorneys to move for in camera review of documents attached to a motion prior to the attorney discussing it with their client and would be a waste of judicial resources.

The Attorney for the Children states that whether an Attorney for the Child shows, reads or summarizes motion papers for a child is not a matter for the Court to involve itself. The Attorney for the Children also contends that not every child needs to see every document and most children do not wish to see the documents but here the child specifically requested [*5]information regarding Dr. Sykes report, "[Redacted] directly asked your Affirmant to view the reports in my office under my supervision in an effort to correct any misstatements she believed may be present in the reports." The Attorney for the Children submits that the Reports by Dr. Sykes and motions pending in this proceeding are important as the child has an interest in the outcome and not sharing such information with the child could make the role of Attorney for the Children "meaningless".

As it relates to the Court's role in parens patriae, counsel asserts that if the Court grants Plaintiff's application it would be an improper exercise of the Courts parens patriae powers as it would not be in the best interest of the child and it is the Courts duty to make rulings on the best interest of child but that does not extend the right to interfere with the Attorney for the child and child relationship.
As to the issue of access to forensic report counsel concedes that she does not suggest that every child be given or shown every report, but that Attorneys for the Children should be able to make that determination case by case and client by client as every child and case is different. The Attorney for the Children argues that part of providing consultation as an Attorney for the Child is to make the judgment as to what is appropriate for the child given age, maturity and insight. The Attorney for the Children in arguing the parameters of Rule 7.2 contemplates that Attorneys for Children should have the skills and ability to consult with children in age appropriate ways and allows Attorneys for the Children to substitute judgment contrary to the clients wishes when necessary and that she contends that the rule knows that the Attorney for the Children must make complicated analysis of each child's circumstances. The Attorney for the Children in meeting this obligation that the Rule does not specify at which age Attorneys may not substitute judgment as it left to the discretion of the Attorney for the Children based on an analysis of each child's capacity and circumstances.

The Attorney for the Child respectfully requests the denial of Plaintiff's Motion Sequence #15.

The Law

Parens Patriae This Court must determine if the doctrine of parens patriae is superseded by Rule 7.2 "Function of the Attorney for the Child, of the Rules of the Chief Judge when a determination is made as to what information from a therapeutic visitation report is shared with a 14 year old child during a dispute over the issue of visitation. As stated by Justice Cardoza in writing for a unanimous New York Court of Appeals:

"The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against any one. He acts as parens patrioe to do what is best for the interest of the child. He is to put himself in the position of a "wise, affectionate and careful parent" (Queen v. Gyngall, 1893, 2 Q. B. D. 232, 238), and make provision for the child accordingly. He may act at the intervention or on the motion of a kinsman, if so the petition comes before him, but equally he may act at the instance of any one else. He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights "as between a parent and a child" or as between one parent and another (Queen v. Gyngall, 1893, 2 Q. B. D. 232, 238). He "interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patrioe" (Matter of Spence, 2 Phillips, 247, 248).The plaintiff makes no pretense of invoking this paternal jurisdiction. We are not advised by his complaint whether a division of the custody will tend to the benefit of his sons or to their detriment. He invokes the jurisdiction of a court to settle a dispute. Equity does not concern itself with such disputes in their relation to the disputants. Its concern is for the child."

(See:Finlay v. Finlay, 240 NY 429, 148 N.E. 624 [Court of Appeals 1925]).

  "[I]f custody and visitation are in issue, the court's role as parens partriae must not be usurped" (see, Glauber v. Glauber, 192 AD2d 94, 600 N.Y.S.2d 740 [2nd Dept. 1992]; Finlay v. Finlay, 240 NY 429, 148 N.E. 624 [Court of Appeals 1925]. "The State, succeeding to the prerogative of the crown, acts as parens patriae. Sometimes the power is exercised legislatively (Domestic Relations Law, § 109, subd. 6; § 111,; People v. Ewer, 141 NY 129, 133-135), sometimes constitutionally (NY Const., art. VI, § 32), but usually by the court" (See, Agur v. Agur, 32 AD2d 16, 298 N.Y.S.2d 772 [2nd Dept. 1969]).
This Court recognizes the importance of the role of the attorney for the child and the right of the child's wishes to be considered. Recently the Appellate Division First Department held in Matter of Byron M. v Sasha A.: "There is a rebuttable presumption that visitation by a noncustodial parent is in the child's best interest and should be denied only in exceptional circumstances" (see Matter of Byron M. v Sasha A., 2020 NY Slip Op 02243 [1st Dept. 2020]; Matter of Granger v Misercola, 21 NY3d 86, 90-91, 990 N.E.2d 110, 967 N.Y.S.2d 872 [Court of Appeals 2013]; Matter of Ronald C. v Sherry B., 144 AD3d 545, 546, 42 N.Y.S.3d 2 [1st Dept 2016]; Matter of Nathaniel T., 97 AD2d 973, 974, 468 NYS2d 768 [4th Dept 1983]). In Matter of Byron M. (2020 NY Slip Op 02243 [1st Dept. 2020]). the presumption that petitioner and the child should visit with each other was not rebutted as there was no evidence in the record that visitation with petitioner would place the child in any physical danger or that it would harm her by producing serious emotional strain or disturbance. Nor are there exceptional circumstances to support a finding that petitioner forfeited his right to visitation.
Contrary to the argument by the attorney for the child, the Family Court considered the child's position after conducting an in-camera interview. While the child's wishes are some indication of what is in her best interests and "are entitled to great weight" (Melissa C.D. v Rene I.D., 117 AD3d 407, 408 [1st Dept 2014] [internal quotation marks omitted]), those expressed wishes are only one factor to be considered and do not dictate a certain result in determining the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 173 [1982]).

The Court in Byron (2020 NY Slip Op 02243 [1st Dept. 2020]), clearly indicated that the child's expressed wishes while important are only one factor to be considered and "do not dictate certain result in determining the best interest of the child". In the case at bar the child's desire to read the report and defeat the application for visitation are also but one factor to be considered in allowing the child to read the report.

This Court determines that that application must be denied in the child's best interest, notwithstanding that she is 14 years old and has a right to be heard. It is well established that a child at the age of 14 has the right to have their voice heard in Court but that does not give the child unfettered access during the process. She has voice in the process and that voice will be heard, but there are limitations. For example, the child does not testify in open court but through an in-camera interview, does not sit next to her attorney for the trial nor does she personally appear at oral arguments. The child's testimony is sealed pursuant to CPLR 4019 and cannot be [*6]viewed by either parents or their attorneys. These limitations are designed to protect the child. So is the limitation herein imposed by the Court that under the circumstances presented she may not read the report.

In the case at bar the Court believes it is in the children's best interest to not receive a copy of the therapeutic supervised visitation reports and should not be able to read the report personally .It has not been denied that the child in this case has allegedly used specific quotes from the report to question the therapist and to negatively impact the therapeutic supervised visitation with the non-custodial parent. Dr Sykes in the report dated March 9, 2020 stated that the child had come in with a list of questions after reading the report dated January 20,2020 and wanted to clarify certain things that she believed the therapist had gotten wrong. Dr. Sykes also commented that that child loves UNO but after reading the report from January 20, 2020 refused to play with the Plaintiff and believes that may be because of what was said in the report. Dr. Sykes recommends "Given [redacted]'s age it is recommended that she not be allowed to read any written updates. These updates are written and intended for all the adult key stakeholders. Going forward, I will have meetings with [redacted] and her parents separately or together whenever a change in the T[herapeutic] S[essions] is indicated. These meetings will be used to offer my feedback and to hear from everyone their impressions of progress."

The Second Department in Agur v. Agur (32 AD2d 16, 298 N.Y.S.2d 772 [2nd Dept. 1969]) held that the Court has the role of deciding what is in the best interest of the child and Matter of Granger v Misercola (21 NY3d 86, 90-91, 990 N.E.2d 110, 967 N.Y.S.2d 872 [Court of Appeals 2013]) ruled that visitation with the non-custodial parent is in the best interest of the child unless there are exceptional circumstances, which according to Dr. Sykes there is nothing serious barring the relationship or anything harmful regarding the relationship between the child and the Plaintiff that she has observed [FN2] . Thus, any action by the Attorney for the child which could defeat the state of New York Law as it relates to the resumption of visitation must be met with circumspect in as much as the child while a participant in the process must be viewed as a child who does not have the same emotional capabilities and development at 14 as an adult. She is still an adolescent and revealing to her the diagnostic information related to adolescents and then using for the purpose of attempting to manipulate the process of visitation defeats this Court's ability to protect the child in paren patriae.

It is this Court's opinion that the role as parens patriae is to ensure that the child's best interests are always a priority barring special circumstances that are not before the Court at this time in this case. Based on the Court's long history with this case the Court is fully familiar with this matter and is cognizant of the position stated by the therapist who is conducting the therapeutic supervised visitation and the child's attempt at manipulating the therapist and the visitation, it is not in the best interest of the child to be given or read the reports provided by Dr. Sykes on the supervised therapeutic visitation.

This Court has considered the attorney for the child's position, but the Court will not empower this child as if they were the parent themselves. The children of divorce are still children and the parents are still the parents. It is the courts role in parens patriae to protect the child and if that protection rises to the level of preventing the child from having access to a [*7]report that is being written for adults to help the child's reunification with a parent this Court is willing to do so. The child is still 14 years old and clearly has the right to articulate a position. The appointment of the therapeutic visitation forensic was on consent. The purpose of the appointment was to accomplish re-unification. If it is the child's desire to thwart that re-unification, what then is the role of the court in fostering reunification.

Role of the Attorney for the Child
The Court recognizes and appreciated the position put forth by the child's attorney and the Court understands the attorney's obligation. In fact the Second Department recently noted in the Matter of David v LoPresti, that "Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10-year-old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child "zealously advocate the child's position." (See, Matter of David v LoPresti, 176 AD3d 701, 111 N.Y.S.3d 356 [2nd Dept 2019] Indeed, "[i]n establishing a system for providing legal representation to children, the Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court" (See Matter of David v LoPresti, 176 AD3d 701, 111 N.Y.S.3d 356; [2nd Dept. 2019] Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093, 882 N.Y.S.2d 773 [3rd Dept. 2009]; see Family Ct Act § 241). Nothing herein will prevent her from advocating her client's position and that is why the rule protects the advocate — the lawyer but does not anywhere abrogate the Court's role in parens patria. The court rejects plaintiff's request that permission should be sought related to future communications between the child and her attorney. That would interfere with the relationship and this Court's decision herein is on a very narrow issue, defined by the unique circumstances herein.

As noted in Matter of Newton v McFarlane (174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019]) "Substantively, and more importantly, it cannot be denied that a teenaged child has a real and substantial interest in the outcome of litigation between the parents as to where the child should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child's upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child's parents" (See; Matter of Newton v McFarlane, 174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019] "[A] child is a person, and not a sub person over whom the parent has an absolute possessory interest. A child has rights too, some of which are of . . . constitutional magnitude."( See; Matter of Newton v McFarlane, 174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019]; Quoting: Matter of Bennett v Jeffreys (40 NY2d 543, 546, 356 NE2d 277, 387 NYS2d 821 [1976]): "Among those rights is the child's right to have his or her best interests, and his or her position concerning those interests, given consideration by the court." See; Matter of Newton v McFarlane, 174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019].

The Court fully understands the position by the Defendant and Attorney for the Child that the Child like any other person represented by an attorney is entitled to a zealous advocate and the opportunity to have their position heard, however the Court also understands that the child does not wish to visit with the Plaintiff which has been made clear by the Attorney for the Children. Not allowing the child to read the therapeutic supervised visitation reports in this case [*8]is not going to render the Attorney for the Child unable to take the child's position, instead it has possibly strained the relationship between the Plaintiff and the Child by giving the child the opportunity to try and hinder or manipulate the therapeutic visitation sessions. The Attorney for the Children has been a zealous advocate for the child and has made the child's wishes and voice heard in Court regarding the visitation and therefore in this case, not allowing the child to read the report or be given a copy of the report will not hinder the Attorney for the Children's ability to advocate for the child nor does it interfere with the Childs constitutional right.

This Court is not restraining anyone's rights to be heard during this proceeding. The Attorney for the Child has every right to speak and participate in the process on behalf of the child and advocate for what the child wants. This Court not allowing the child to physically read the reports provided by the therapist is not an injunction or restraint on expression, the Attorney for the Child has made the child's position extremely clear throughout the process.

The Court must strike a balance between the role of the attorney for the child and the Court's role in paren patriae. The Court disagrees that when Rule 7.2 was enacted that it was the intent to abrogate the role of the Court in paren patriae until the decision was made.

Conclusion The Plaintiff's Motion Sequence #15 is granted to the extent indicated herein. The Attorney for the Children is not to show the Dr. Sykes reports to the children. The Attorney for the Children may discuss the reports in age appropriate terms without directly quoting the report.

The role of the Court as articulated by Justice Cardoza in 1925 to protect children has not changed except that the chancellor referred to is now a Judge and the reference to "he' is now "she or he" when referring to the judicial officer.

This shall constitute the decision and order of the court.

Footnotes

Footnote 1:The Court does need to reach a conclusion on the merits of said allegation as they are not germane to this case.

Footnote 2:The Court recognizes that this is the opinion of the professional and the ultimate determination of this issue can only be made by the Court."


  

THE ATTORNEY FOR THE CHILD IS AN ATTORNEY OF THE CHILD

A reminder to parents in custody disputes that the Attorney For The Child must take an active role.

Matter of Jennifer VV. v Lawrence WW., 2020 NY Slip Op 02136, Decided on April 2, 2020, Appellate Division, Third Department:

"Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of two children (born in 2008 and 2012). Pursuant to an October 2015 judgment of divorce, the parties were granted joint legal and shared physical custody of the children. The parties' settlement agreement was incorporated but not merged into the judgment and included, among other things, a parenting time schedule by which the children alternated between the parents' homes several times each week.

When the parties entered into the agreement, they both resided in the City of Mechanicville, Saratoga County. Thereafter, the mother remarried and moved to a new residence in a different school district. In February 2017, she commenced this modification proceeding seeking to reduce the number of midweek transitions on the ground that, among other things, she had left her former employment and planned to stay at home with a newly born child for several years. The mother also sought an order directing that the children would attend school in the district where her new home was located. She later amended her petition to request sole decision-making authority with respect to the children's religion on the ground that the father objected to their participation in religious activities. The father opposed any modification of the existing agreement.

Following a fact-finding hearing, Family Court determined that the mother had established a change in circumstances and that the children's best interests warranted modification of the agreement. The court ordered that the parties would continue to have joint legal custody, with primary physical custody to the mother and parenting time for the father under a schedule by which the mother would have the children from Saturday morning to Wednesday morning each week, and the father would have parenting time from Wednesday after school until Saturday morning. The court further ordered that the children would attend school in the district where the mother resided, and awarded the mother sole decision-making authority regarding the children's religion, so long as there was no interference with the father's parenting time. The father appeals.

The attorney for the children (hereinafter the AFC) on appeal was the same counsel who had represented the children in Family Court. The AFC initially submitted a letter to this Court stating that he did not intend to file a brief because the children — then approximately 10 and 6 years old — were "too young to formulate an independent opinion and provide a foundation for their respective opinions" and expressing his views on the children's best interests. This Court rejected the letter and directed the AFC to submit a brief in compliance with this Court's practice rules. In response, the AFC filed a brief in which he reiterated his position as to his clients' alleged inability to form an opinion, such that "[he], as their legal advocate, should articulate what [he] believe[d] to be in their best interest at the present time." Without stating the children's preferences, the brief discussed the factors pertinent to a best interests analysis and concluded that Family Court's order was in the children's best interests and should be affirmed.

The Rules of the Chief Judge require that an AFC in a custody or visitation proceeding "must zealously advocate the child's position" (22 NYCRR 7.2 [d]; see 22 NYCRR 7.2 [c]), and further provide 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] believes that what the child wants is not in the child's best interests" (22 NYCRR 7.2 [d] [2]; see Matter of Cunningham v Talbot, 152 AD3d 886, 886-887 [2017]; Matter of Gloria DD. [Brenda DD.], 99 AD3d 1044, 1046 [2012]; Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094 [2009]). The Rules establish only two circumstances in which an AFC may adopt a position that does not reflect the child's wishes — specifically, when he or she "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" (22 NYCRR 7.2 [d] [3]; see Matter of Mark T. v Joyanna U., 64 AD3d at 1094).

The AFC here wholly failed to fulfill the obligations imposed by these provisions upon this appeal. The only stated basis for his determination to advocate for the children's best interests rather than for their wishes was their ages. However, it was the AFC's obligation to "consult with and advise the child[ren] to the extent of and in a manner consistent with [their] capacities" (22 NYCRR 7.2 [d] [1]). At 10, the older child was certainly old enough to be capable of expressing her wishes, and whether the younger child, at 6, had the capacity to do so was not solely dependent upon her calendar age, but also upon such individual considerations as her level of maturity and verbal abilities (see e.g. Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 168 AD3d 1244, 1245 [2019] [AFC improperly failed to consult with child who was between 4½ and six years old during paternity litigation]; Matter of Ford v Baldi, 123 AD3d 1399, 1400 [2014] [seven-year-old child was "of an age where her wishes may be ascertained and taken into consideration"]; Matter of Seeley v Seeley, 119 AD3d 1164, 1167 [2014] [visitation matter remitted to Family Court for consideration of the wishes of child approximately nine years old]; Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008] [two Lincoln hearings conducted in custody dispute involving child approximately five years old]).[FN1] The AFC did not claim that either child met either of the two exceptions to 22 NYCRR 7.2 (d) (3), i.e., a lack of capacity or risk of imminent harm, and nothing in the record reveals either circumstance (compare Matter of Audreanna VV. v Nancy WW., 158 AD3d 1007, 1011 [2018] [record established that children approximately six and seven years old "lack(ed) the capacity for knowing, voluntary and considered judgment due to their age(s), disabilities and the grandmother's hostility toward the mother"] [internal quotation marks and citation omitted]).[FN2] Moreover, even when it is appropriate for an AFC to substitute his or her judgment for the child's preferences, the AFC must nevertheless inform Family Court of the child's wishes if authorized by the child to do so (see 22 NYCRR 7.2 [d] [3]). Here, the AFC's brief is devoid of any indication of the children's wishes, with no reference to 22 NYCRR 7.2 or to the analysis that this rule requires an AFC to undertake before advocating for a position that does not express the child's wishes (compare Matter of Emmanuel J. [Maximus L.], 149 AD3d 1292, 1297 [2017]; Matter of Alyson J. [Laurie J.], 88 AD3d 1201, 1203 [2011], lv denied 18 NY3d 803 [2012]).

Additionally, although the record reveals that the AFC met with the children during the Family Court proceeding, it does not appear that he met or spoke with them again during the appeal.[FN3] The children were, "at the least, entitled to consult with and be counseled by [their] assigned attorney, to have the appellate process explained, to have [their] questions answered, to have the opportunity to articulate a position which — with the passage of time — may have changed, and to explore whether to seek an extension of time within which to bring [their] own appeal of Family Court's order. Likewise the child[ren were] entitled to be [apprised] of the progress of the proceedings throughout. It appears that none of these services was provided to the child[ren]" (Matter of Mark T. v Joyanna U., 64 AD3d at 1094-1095 [citation omitted]). The AFC thus "failed to fulfill his essential obligation," and the children did not receive the effective assistance of appellate counsel (id.; accord Matter of Lewis v Fuller, 69 AD3d 1142, 1142-1143 [2010]; see Matter of Lamarcus E. [Jonathan E.]; 90 AD3d 1095, 1096 [2011]; see also Matter of Seeley v Seeley, 119 AD3d at 1167). Accordingly, the AFC will be relieved of his assignment, the Court's decision will be withheld and new counsel will be assigned to represent the children.

ORDERED that the decision is withheld, appellate counsel for the children is relieved of assignment and new counsel to be assigned to represent the children on this appeal.
Footnotes

Footnote 1: We further note that the AFC's statement that the children were too young to articulate "position[s] which they believe[d] to be in their best interest" misapprehends his obligation. 22 NYCRR 7.2 requires an AFC to advocate for a child's wishes. The rule does not require either the child or the AFC to make any determination as to his or her best interests; that determination is to be made by the court.

Footnote 2: The record indicates that the older child has an unspecified adjustment disorder and was unresponsive to the AFC during their initial meeting. However, the AFC stated during the fact-finding hearing that the child "loosened up a bit" in later telephone conversations and became "very verbal." In any event, the AFC made no claim that, as a result, the child lacked the capacity for knowing, voluntary and considered judgment.

Footnote 3: The AFC's brief states that it is "[b]ased on [his] reviews of the arguments of the parties, [his] trial notes and other documents in [his] file including notes taken contemporaneously when meeting with the children and the above analysis." "