Attorney Communication with DSS

The authority of the Family Court to order DSS to conduct an investigation in the context of both an Article 6 and an Article 10 proceeding, is found in Article 10 of the Family Court Act, which applies generally to child protective proceedings. Sections 1034(1)(a) and (b), provide, in relevant part:'

(1) A family court judge may order the child protective service of the appropriate social services district to conduct a child protective investigation as described by the social services law and report its findings to the court:

(a) in any proceedings under this article [Article 10], or

(b) in order to determine whether a proceeding [an Article 10 proceeding] under this article could be initiated.

Although the court's statutory authority to order a social services investigation in an Article 6 custody proceeding is found in Article 10 of the Family Court Act, this does not mean that, if a DSS investigation is ordered, the proceeding falls under the ambit of, or becomes, an Article 10 proceeding. This distinction is extremely important in addressing the question of whether a party's attorney may contact DSS.

Article 10 Proceedings

Whether a party's attorney may directly contact DSS during the course of a court-ordered investigation is dependent upon the type of proceeding pending before the court. In an Article 10 proceeding, DSS is the prosecuting party and is represented by a prosecuting agency (generally, the County Attorney or office of the Corporation Counsel in New York City). Inasmuch as DSS is a party represented by counsel, neither the responding party's attorney nor the attorney for the child may contact DSS, including the assigned caseworker, without the consent of DSS's attorney. If a party's attorney does so without permission, that attorney has violated Rule 4.2 of the New York Rules of Professional Conduct, which provides:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

Rules of Prof. Con., Rule 4.2 McK.Consol.Laws, Book 29 App.

Because in an Article 10 case DSS is both an investigatory body and a represented party, the Rules of Professional Conduct apply. Therefore, if the Family Court orders DSS to conduct an investigation in an Article 10 proceeding, the attorneys for the responding party and the child may not contact DSS during the course of that investigation.

Next month we will discuss a recent case that distinguishes the treatment of DSS attorney contact in Article 10 and Article 6 hearings.

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Jerome A. Wisselman, a member of the newsletter's Board of Editors, is a partner in the Great Neck firm of Wisselman, Harounian & Associates, P.C. Lisa M. Gregg is an associate with the firm.

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Custody proceedings in the Family Court are governed generally by Article 6 of the Family Court Act. In an Article 6 proceeding, a court may direct a “court-ordered investigation” (often referred to as a COI) to be conducted by the local department of social services (DSS) or child protective services (CPS). The purpose of this investigation is broad and includes the gathering of information concerning the home and background of the parties and the children, and about allegations made against either party as to abuse or neglect of the children. A caseworker “investigator” is assigned, who will then visit the parties' homes and interview them, the children and any other relevant people, in accordance with the type of allegations or issues in the particular case. The caseworker will issue a written report, and often times progress notes, which are sent directly to the court, setting forth the results of the investigation.

In theory, such independent investigations by a DSS caseworker can be extremely helpful in gathering facts in what are, often times, hotly contested custody proceedings. But, what if there are problematic issues with DSS's investigation, or with the caseworker assigned by DSS? And when and how, if at all, may a party's attorney contact DSS about those problems?

Authority for a Court-Ordered Investigation'

The authority of the Family Court to order DSS to conduct an investigation in the context of both an Article 6 and an Article 10 proceeding, is found in Article 10 of the Family Court Act, which applies generally to child protective proceedings. Sections 1034(1)(a) and (b), provide, in relevant part:'

(1) A family court judge may order the child protective service of the appropriate social services district to conduct a child protective investigation as described by the social services law and report its findings to the court:

(a) in any proceedings under this article [Article 10], or

(b) in order to determine whether a proceeding [an Article 10 proceeding] under this article could be initiated.

Although the court's statutory authority to order a social services investigation in an Article 6 custody proceeding is found in Article 10 of the Family Court Act, this does not mean that, if a DSS investigation is ordered, the proceeding falls under the ambit of, or becomes, an Article 10 proceeding. This distinction is extremely important in addressing the question of whether a party's attorney may contact DSS.

Article 10 Proceedings

Whether a party's attorney may directly contact DSS during the course of a court-ordered investigation is dependent upon the type of proceeding pending before the court. In an Article 10 proceeding, DSS is the prosecuting party and is represented by a prosecuting agency (generally, the County Attorney or office of the Corporation Counsel in New York City). Inasmuch as DSS is a party represented by counsel, neither the responding party's attorney nor the attorney for the child may contact DSS, including the assigned caseworker, without the consent of DSS's attorney. If a party's attorney does so without permission, that attorney has violated Rule 4.2 of the New York Rules of Professional Conduct, which provides:

In representing a client, a lawyer shall not communicate or cause another to communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the prior consent of the other lawyer or is authorized to do so by law.

Rules of Prof. Con., Rule 4.2 McK.Consol.Laws, Book 29 App.

Because in an Article 10 case DSS is both an investigatory body and a represented party, the Rules of Professional Conduct apply. Therefore, if the Family Court orders DSS to conduct an investigation in an Article 10 proceeding, the attorneys for the responding party and the child may not contact DSS during the course of that investigation.

Next month we will discuss a recent case that distinguishes the treatment of DSS attorney contact in Article 10 and Article 6 hearings.

'[IMGCAP(1)]

'

Jerome A. Wisselman, a member of the newsletter's Board of Editors, is a partner in the Great Neck firm of Wisselman, Harounian & Associates, P.C. Lisa M. Gregg is an associate with the firm.

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