Law Guardian May Not Be Unsworn Witness and Must Comply with Law Guardian Rules of the Chief Judge
In Naomi C v Russell A, --- N.Y.S.2d ----, 2008 WL 304936 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed without a hearing Court’s dismissal of a petition to modify a custody order. The Appellate Division pointed out that with the parties present, the court asked the Law Guardian, on the record, to discuss the position of the 10-year-old child regarding how well the current custody arrangement was working. Although the court was warranted in dismissing the petition on its face, the questioning of the Law Guardian (now called Attorney for the Child) by the court was " something that should not be repeated". Although the court was correct to disallow the "cross-examination" of the Law Guardian by petitioner's counsel, the court should not consider the hearsay opinion of a child in determining the legal sufficiency of a pleading in the first place. Most importantly, such colloquy makes the Law Guardian an unsworn witness, a position in which no attorney should be placed. It emphasized that the attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to becoming a witness in the litigation. (Citing Rules of the Chief Judge [22 NYCRR] 7.2[b] ).
Saturday, May 24, 2008
New York Recent Decisions of Interest
Second Department Removes Law Guardian Failure to Comply With Rules of Chief Judge
In Cervera v Bressler, --- N.Y.S.2d ----, 2008 WL 1748331 (N.Y.A.D. 2 Dept.) the parties' entered into a stipulation, later so-ordered by the court, in which they agreed to joint custody, with primary physical custody with the mother, visitation to the father
on alternate weekends and one weekday per week, and the removal of certain restrictions on visitation that had been imposed temporarily. In July 2005, the attorney for the child moved by order to show cause for supervised visitation, based on various allegations by the mother, including one allegation of sexual molestation. The sexual molestation allegation was subsequently determined to be unfounded. Although a hearing on the motion was scheduled at least once, it never took place, and visitation by the father remained supervised since July 28, 2005. The Appellate Division held that supervised visitation was appropriately required only where it is established that unsupervised visitation would be detrimental to the child and because no hearing was ever held on the order to show cause visitation remained supervised, and telephone contact between father and daughter was monitored, for about 2 1/2 years, based solely on the hearsay allegations of the mother. These consisted of the allegations of molestation, which were determined by OCFS to be unfounded, and stories of various incidents, the details of which were disputed by the father and, were insufficient to show that unsupervised visitation would be detrimental to the child's well-being. Under these circumstances, it was unacceptable to the Second Department that the hearing had not been held, although ordered more than 2 1/2 years earlier. This arrangement resulted in the violation of the father's right to reasonable access and visitation.
It also held that the court should not have required the father to pay the cost of supervising his visitation without determining the economic realities, including his ability to pay and the actual cost of each visit. Finally, it held that the court improvidently exercised its discretion in denying the father's motion to remove Joshua D. Siegel as the attorney for the child. It referred to the new rules that had been recently promulgated by the Chief Judge and stated that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence. On the other hand, attorneys for children are not neutral automatons. After an appropriate inquiry, it is entirely appropriate, indeed expected, that an attorney for the child form an opinion about what action, if any, would be in a child's best interest. An attorney for the child is not an investigative arm of the court. While attorneys for the children, as advocates, may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), presenting reports containing facts which are not part of the record or making submissions directly to the court ex parte are inappropriate practices. Here, in the order to show cause , and the affirmation in support, as well as in every affirmation submitted thereafter, the attorney for the child included facts which were not part of the record, but which constituted hearsay gleaned from the mother. This behavior on the part of the attorney for the child, as well as his repeated ad hominum attacks on the father's character, was both unprofessional and improper, as it amounted to the attorney for the child acting as a witness against the father, in violation of the Rules of the Chief Judge (see 22 NYCRR 7.2[b] ).
Law Guardian Rebuked for Failure to Follow Rules of Chief Judge and Wishes of Child
In Matter of Delaney v. Galeano,--- N.Y.S.2d ----, 2008 WL 1823048 (N.Y.A.D. 2 Dept.) the attorney for the child appealed from an order of the Family Court, which, after a hearing, denied his motion to hold the respondent mother in contempt. Upon receipt of a copy of a letter dated June 15, 2007, from the 14-year-old child to the effect that he did not want the appeal to proceed, the Appellate Division issued an order to show cause directing the parties or their attorneys to show cause why an order should not be made dismissing the appeal in the above-entitled proceeding as withdrawn. After argument of the appeal the motion was granted and the appeal was dismissed as withdrawn. The Appellate Division held that where "the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child" (22 NYCRR 7.2[d][2]). Here, the child on numerous occasions has expressed concern that his attorney was not representing his wishes. Additionally, he requested that the appeal be withdrawn, prompting the Court to require the parties or their attorneys to show cause why the appeal should not be dismissed as withdrawn. In response to that order to show cause, the attorney for the child failed to demonstrate any basis upon which the child's preference may properly be disregarded (see 22 NYCRR 7.2[d][3] ).
In Cervera v Bressler, --- N.Y.S.2d ----, 2008 WL 1748331 (N.Y.A.D. 2 Dept.) the parties' entered into a stipulation, later so-ordered by the court, in which they agreed to joint custody, with primary physical custody with the mother, visitation to the father
on alternate weekends and one weekday per week, and the removal of certain restrictions on visitation that had been imposed temporarily. In July 2005, the attorney for the child moved by order to show cause for supervised visitation, based on various allegations by the mother, including one allegation of sexual molestation. The sexual molestation allegation was subsequently determined to be unfounded. Although a hearing on the motion was scheduled at least once, it never took place, and visitation by the father remained supervised since July 28, 2005. The Appellate Division held that supervised visitation was appropriately required only where it is established that unsupervised visitation would be detrimental to the child and because no hearing was ever held on the order to show cause visitation remained supervised, and telephone contact between father and daughter was monitored, for about 2 1/2 years, based solely on the hearsay allegations of the mother. These consisted of the allegations of molestation, which were determined by OCFS to be unfounded, and stories of various incidents, the details of which were disputed by the father and, were insufficient to show that unsupervised visitation would be detrimental to the child's well-being. Under these circumstances, it was unacceptable to the Second Department that the hearing had not been held, although ordered more than 2 1/2 years earlier. This arrangement resulted in the violation of the father's right to reasonable access and visitation.
It also held that the court should not have required the father to pay the cost of supervising his visitation without determining the economic realities, including his ability to pay and the actual cost of each visit. Finally, it held that the court improvidently exercised its discretion in denying the father's motion to remove Joshua D. Siegel as the attorney for the child. It referred to the new rules that had been recently promulgated by the Chief Judge and stated that an attorney for the child should not have a particular position or decision in mind at the outset of the case before the gathering of evidence. On the other hand, attorneys for children are not neutral automatons. After an appropriate inquiry, it is entirely appropriate, indeed expected, that an attorney for the child form an opinion about what action, if any, would be in a child's best interest. An attorney for the child is not an investigative arm of the court. While attorneys for the children, as advocates, may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), presenting reports containing facts which are not part of the record or making submissions directly to the court ex parte are inappropriate practices. Here, in the order to show cause , and the affirmation in support, as well as in every affirmation submitted thereafter, the attorney for the child included facts which were not part of the record, but which constituted hearsay gleaned from the mother. This behavior on the part of the attorney for the child, as well as his repeated ad hominum attacks on the father's character, was both unprofessional and improper, as it amounted to the attorney for the child acting as a witness against the father, in violation of the Rules of the Chief Judge (see 22 NYCRR 7.2[b] ).
Law Guardian Rebuked for Failure to Follow Rules of Chief Judge and Wishes of Child
In Matter of Delaney v. Galeano,--- N.Y.S.2d ----, 2008 WL 1823048 (N.Y.A.D. 2 Dept.) the attorney for the child appealed from an order of the Family Court, which, after a hearing, denied his motion to hold the respondent mother in contempt. Upon receipt of a copy of a letter dated June 15, 2007, from the 14-year-old child to the effect that he did not want the appeal to proceed, the Appellate Division issued an order to show cause directing the parties or their attorneys to show cause why an order should not be made dismissing the appeal in the above-entitled proceeding as withdrawn. After argument of the appeal the motion was granted and the appeal was dismissed as withdrawn. The Appellate Division held that where "the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child" (22 NYCRR 7.2[d][2]). Here, the child on numerous occasions has expressed concern that his attorney was not representing his wishes. Additionally, he requested that the appeal be withdrawn, prompting the Court to require the parties or their attorneys to show cause why the appeal should not be dismissed as withdrawn. In response to that order to show cause, the attorney for the child failed to demonstrate any basis upon which the child's preference may properly be disregarded (see 22 NYCRR 7.2[d][3] ).
Latest New York Decisions Now Posted (and discussed)
This blog is written as a public service to provide useful information to the New York bench, bar and litigant. We have tried to decide on a format for the posting on this blog which will differ from the other blogs on the web. Almost all of the divorce and family law blogs we have visited contain general discussions of recent cases reported in the media which are newsworthy, but are not really important or helpful for the attorneys, judges and litigants involved in the New York Court System.
We have decided to use our blog to create an alternative source for some of the information available on our New York Divorce and Family Law web site.
This site will report on recent New York decisions regarding New York Divorce and Family Law which, in our opinion, are important for those involved in the New York court system. Where appropriate, our postings will contain editorial comment. We welcome your contributions and comments.
We have decided to use our blog to create an alternative source for some of the information available on our New York Divorce and Family Law web site.
This site will report on recent New York decisions regarding New York Divorce and Family Law which, in our opinion, are important for those involved in the New York court system. Where appropriate, our postings will contain editorial comment. We welcome your contributions and comments.
Friday, March 28, 2008
W'ere Back
After a long hiatus in posting we are back with the New York Divorce and Family Law, a blog for New York attorneys and judges.
We hope that we will be able to make a meaningful contribution to the continuing legal education of the New York matrimonial bench and bar by responding to posts from attorneys with regard to any aspect of New York Divorce and Family Law.
New York attorneys and judges are encouraged to post on our site and respond to questions or comments posted by other attorneys with regard to about any aspect of New York Divorce and Family Law practice, procedure, court decisions or legislation.
Our objective is to create an forum for the exchange of knowlege and information among the bench and bar. We need your input, questions and comments to make it work. We need to hear from you.
We hope that we will be able to make a meaningful contribution to the continuing legal education of the New York matrimonial bench and bar by responding to posts from attorneys with regard to any aspect of New York Divorce and Family Law.
New York attorneys and judges are encouraged to post on our site and respond to questions or comments posted by other attorneys with regard to about any aspect of New York Divorce and Family Law practice, procedure, court decisions or legislation.
Our objective is to create an forum for the exchange of knowlege and information among the bench and bar. We need your input, questions and comments to make it work. We need to hear from you.
Friday, November 03, 2006
Some Thoughts For Attorneys on Preparing to Try a Divorce Case
When preparing or the trial of any action, several questions must be posed and answered by counsel in order to define the burden of proof that has to be met in order to be successful. The two most important questions are what do I have to prove and how will I prove it?
Sub parts of this questions are:
What are my goals? i.e. ,Divorce, maintenance, child support, etc.)
What do I have to prove in order to attain these goals?
What are the elements of the cause(s) of action that I have to prove in order to make out a prima facie case for a divorce on the grounds of ______?
What do I have to prove in order to obtain an award of maintenance (child support, custody, exclusive occupancy, counsel fees, equitable distribution insurance)for my client?
How do I establish the necessity for an award of ____________?
What is the substantive law applicable to this claim?
What rules of practice or rules of evidence are applicable to this claim?
What testimonial evidence will I offer to establish this claim?
What documentary evidence will I offer to establish this claim?
Consideration should be given to these questions when preparing for trial, and during the trial.
Sub parts of this questions are:
What are my goals? i.e. ,Divorce, maintenance, child support, etc.)
What do I have to prove in order to attain these goals?
What are the elements of the cause(s) of action that I have to prove in order to make out a prima facie case for a divorce on the grounds of ______?
What do I have to prove in order to obtain an award of maintenance (child support, custody, exclusive occupancy, counsel fees, equitable distribution insurance)for my client?
How do I establish the necessity for an award of ____________?
What is the substantive law applicable to this claim?
What rules of practice or rules of evidence are applicable to this claim?
What testimonial evidence will I offer to establish this claim?
What documentary evidence will I offer to establish this claim?
Consideration should be given to these questions when preparing for trial, and during the trial.
Subscribe to:
Posts (Atom)