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#163 Some Meditations On Independently-Retained Attorneys For Children

June 21, 2012

163 Post Depositphotos_1035726_XS.jpgOr, How To Continue To Beat A Dead Horse. I promise, this will be the last time I visit this particular subject for a while. At least until some new caselaw comes along to give me a reason to revisit it.

Also, these matters only pertain to Article 6 (custody), 8 (family offenses), and 10 (neglect and abuse) cases. They do NOT pertain to Article 3 (juvenile delinquency) or Article 7 (persons in need of supervision) cases, where it is perfectly acceptable for a parent to retain an attorney for the child.

While there is no substitute for reviewing the various applicable cases and statutory laws in this matter before opting to represent a child, there is basically a short list of "dos and don'ts" that apply here. This list should be commonsensical and should be seen as merely a starting point in the independent representation of a child.

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#161 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 5 of 5

June 18, 2012

161-1 Post Depositphotos_1035726_XS.jpgAnd now the third and last case in the series, together with some thoughts on the topic.

Case 3.
Torelli v. Torelli, 50 A.D.3d 1125, 855 N.Y.S.2d 376 (2nd Dept., 2008)
Suffolk Supreme - Mackenzie
Issues: Attorney for the Child; Best Interests; Custody; Divorce; Right to Counsel
Cited Statutes: none
Affirmed

This case does not shed any further light on this area of law but it is included here for purposes of illustrating how this area of law is evolving.

In an action for divorce, the mother's mother (the child's maternal grandmother) retains an attorney who then makes a motion to remove the court-assigned attorney for the child. Very unsurprisingly, this motion is denied, and the independently-retained attorney appeals. The matter is affirmed on appeal with costs. What does this mean? It means that the Second Department was probably annoyed that the independently-retained attorney who perfected the appeal apparently did not take the Third Department case of La Bier v. La Bier to heart and act accordingly.

Thus, though to a lesser degree, Torelli stands for in the Second Department what La Bier stands for in the Third Department. Can it be long before the First and Fourth Departments agree, thereby mooting any action by the Court of Appeals?

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#157 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 4 of 5

June 16, 2012

157-1 Post Depositphotos_1035726_XS.jpgAnd now the second half of the second case in this series ...

Case 2.
Matter of B.M., 15 Misc.3d 1123(A), 841 N.Y.S.2d 217 (Table) (Fam. Ct. 2007)
Orange Family - Woods
Issues: Attorney for the Child; Best Interests; Neglect; Right to Counsel; Sexual Abuse
Cited Statutes: FCA Art. 10
Not Appealed

"It is also unclear what role A.J., Esq. would play in this litigation as counsel for the child as a witness. The Law Guardian is the child's attorney and responsible for representing the child's wishes as well as for advocating for the child's best interest. To carve out an exception to the Law Guardian's representation of the child would undermine the Law Guardian's overall ability to carry out her independent role in these proceedings. There is no evidence that the child is unsatisfied with the Law Guardian's representation of her. See, Matter of Elianne M., 196 A.D.2d 439 (1st Dept., 1993). Indeed, the Law Guardian is well versed and experienced in difficult matters such as the one presently before the Court. On the other hand, A.J., Esq. is not a member of Law Guardian Panel, Second Department. See, NY Ct. Rules ยง679."

"A.J., Esq. represented the child as a witness in the criminal proceedings, but this representation does not automatically extend to the Family Court matter. It is this Court's experience that a child can be subjected to undue stress and pressure to change his or her story because so often allegations such as those in the petition can destroy a family. The Court is in no way implying that either respondent has pressured the child to do so, but in order to insure that her best interests are protected neutral and independent counsel appointed by the Court namely the Law Guardian shall represent her for purposes of this matter. Therefore, it is hereby"

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#153 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 3 of 5

June 14, 2012

153-1 Post Depositphotos_1035726_XS.jpgAnd now the first half of the second case in this series ...

Case 2.
Matter of B.M., 15 Misc.3d 1123(A), 841 N.Y.S.2d 217 (Table) (Fam. Ct. 2007)
Orange Family - Woods
Issues: Attorney for the Child; Best Interests; Neglect; Right to Counsel; Sexual Abuse
Cited Statutes: FCA Art. 10
Not Appealed

This case is very problematic, in light of La Bier. If anything, this case makes it much more onerous for a child to retain a truly independent attorney. While this case is not controlling, I would bet you lunch that it will very strongly influence all future appeals in this area of law. Again, all emphasis in quoted text is my own.

Orange County DSS filed a neglect petition against the mother of a 14-year old girl upon allegations that the mother's boyfriend had sexually molested the girl. It was alleged that the mother failed to protect her daughter by allowing the boyfriend to sleep in close proximity to the daughter - even after the mother was made aware of the allegations of sexual abuse!

The court assigned an attorney for the child and, thereafter, at the initial appearance, both the court-assigned attorney for the child and an independently-retained attorney for the child appeared on the child's behalf. Unsurprisingly, the two attorneys argued over this matter and, at the conclusion of the appearance, the Court issued a bench order wherein it refused to recognize the independently-retained attorney for the child, but allowed said attorney to make any motions that attorney deemed necessary.

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#149 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 2 of 5

June 12, 2012

149 Post Depositphotos_1035726_XS.jpgAnd now on to the first of the three (3) cases ...

Case 1.
La Bier v. La Bier, 291 A.D.2d 730, 738 N.Y.S.2d 132 (3rd Dept., 2002)
Albany Family - Duggan
Issues: Attorney for the Child; Best Interests; Custodial Interference; Custody; Right to Counsel; Willful Violations of Orders
Cited Statues: FCA Art. 6
Affirmed

As luck would have it, I happen to know many of the attorneys involved in this particular case. Furthermore, any emphasis found in quoted text is solely my own.

The parties are the divorced parents of two (2) boys. In 1998, the parties had an Order of Custody whereby they were granted joint legal and shared physical custody of the children, whose ages were approximately eleven (11) and twelve (12), with a two-week rotating parenting time schedule.

In 2000, the mother thereafter filed a petition for modification of custody, seeking sole custody of the children, alleging that the father was refusing to effectively communicate with her and was engaging in public displays of anger toward the children. Furthermore, the mother informed the court that her sons had informed her and their attorney (then called a law guardian) that they wanted to live with her and that they had grown tired of the rotating parenting time schedule.

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#146 My Child's Attorney Is STILL Useless! What Can I Do About It?, Part 1 of 5

June 12, 2012

146 Post Depositphotos_1035726_XS.jpgFunny you should ask!

Well ... not a hell of a lot, actually.

Sooner or later (put your money on later), the Court of Appeals might address this question. However, until then, we will need to read the tea leaves from all four (4) judicial departments in the state. Currently, it seems that only the Third and Second Departments have addressed this issue in any form. But it is quite possible that the First and Fourth Departments would be inclined to go along with what they have decided.

Again, the short answer is simple: make your displeasure known, to both the attorney for the child AND the court itself, IMMEDIATELY! The best advice is the most obvious: the squeaky wheel gets the grease.

What you need to know is that the Attorney for the Child Program has recently mandated that attorneys for the child cannot be paid by the state of New York until and unless they submit a sworn affidavit attesting to the fact that they actually met with the child, to which the court has assigned them, on at least one occasion. However, meeting at least once with your client is basically doing the bare minimum to provide adequate legal representation to the client. Yet, one needs to be grateful for this step in the right direction, at the very least.

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#4: It's Just An Order Of Protection. No Big Deal, Right?

October 9, 2011

Depositphotos_4831279_XS.jpgSorry, but whenever I hear someone say this, or something like it, I laugh. Hard. Sometimes uncontrollably. Why? Because it's like having a pet alligator on a leash. No big deal, right? Except, that when it DOES become A Big Deal, it's going to come as something of a real shock, something far, far more than just A Big Deal.

Or try this. What if you heard a person say: "It's just cancer. No big deal, right?" You'd think: what the hell? Sorta stops you right in your tracks, doesn't it? Because it makes you ponder the obvious question: at what point DOES it become A Big Deal?

Orders of protection - like cancer - are Big Deals. And - like cancer - a very great deal depends on the details. And the more information you have about both, the more able you are to modify your behavior. Because that is exactly what orders of protection and cancer do: they force you to modify your behavior. Or there will be consequences.

If you had cancer, probably the first question you'd have is "What kind is it?"

The second question might be "What are my chances?"

The third question you'd probably have is "How can I increase my chances?"

The fourth: "Will it go away?"

And, inevitably, the final question would be: "How long do I have?"

And, like cancer, these are precisely the questions one should have when dealing with an order of protection.

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#2: My Child's Attorney Is Useless! What Can I Do About It?

October 2, 2011

Depositphotos_1035726_XS.jpgThe short answer is simple: make your displeasure known, to both the attorney for the child AND the court itself, IMMEDIATELY! The best advice is the most obvious: the squeaky wheel gets the grease.

Call, write, text, and/or email the attorney for the child and timely return all of the attorney for the child's calls, letters, texts, and emails. And make sure to document ALL of your attempts to contact and/or meet with the attorney for the child. Nothing quite gets an attorney's attention like a letter sent by certified mail, return receipt requested!

If that still doesn't work, then you may have the option of hiring your own attorney to represent your child, or of having a family member do so, but it can be complicated if only because the law is not exactly clear on this issue.

Attorneys for the child (AFC or AFTC) are often appointed by supreme court, family court , and surrogate's court judges in actions or proceedings involving the welfare of children.

Sometimes these appointments are purely discretionary, as may be the case in some child support proceedings (Article 4, 5-A, and 5-B proceedings), paternity proceedings (Article 5 proceedings), custody proceedings (Article 6 proceedings), and family offense proceedings (Article 8 proceedings).

At other times, these appointments are constitutionally or statutorily mandated, as in juvenile delinquency (JD) proceedings (Article 3 proceedings), persons in need of supervision (PINS) proceedings (Article 7 proceedings), abuse and/or neglect proceedings (Article 10 proceedings), foster care proceedings (Article 10-A and 10-B proceedings), and appeals (Article 11 "proceedings").

And, sometimes, it's very hard to tell, especially in complicated custody proceedings or in paternity proceedings involving the thorny legal doctrines of equitable estoppel, presumption of legitimacy, and res judicata, among others. In such cases, it's always better for the court to err on the side of appointing an attorney for the child. Otherwise, there is always a good chance that such a matter could be overturned on appeal.

Furthermore, there is a current trend in the law for the courts to err on the side of appointing an attorney for the child even in less complicated custody proceedings, especially where the children in question are older and/or custody is highly disputed (as between multiple parties). See Albanese v. Lee, 272 A.D.2d 81, 707 N.Y.S.2d 171 (1st Dept., 2000), Betts v. Betts, 51 A.D.3d 699, 858 N.Y.S.2d 317 (2nd Dept., 2008), Amato v. Amato, 51 A.D.3d 1123, 857 N.Y.S.2d 778 (3rd Dept., 2008), and Arlene R. v. Wynette G., 37 A.D.3d 1044, 829 N.Y.S.2d 768 (4th Dept., 2007).

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