The Child-Centricity of Our Matrimonial Courts

The Extent of Children's Knowledge

It has become traditional for many judges to address the parties in open court. Court rule now exists requiring the court to personally address the parties at the preliminary conference. 22 NYCRR ' 202.16(f)(1). More often than not, the court will at some point tell the litigants and/or counsel, in no uncertain terms, that the parties should insulate and isolate the children from their case and the issues between the two of them; that the children should not know what is discussed in court or what transpired in court; that the children should not know about court dates or what the judge has said or ruled; and that they should know only that both parents love them ' or words to that effect. Then, in the next breath, the court most often tells everyone that he or she is appointing an attorney for the children whose official stated role ' by Rule of the Chief Judge ' is to advocate the children's position on their behalf. 22 NYCRR '7.2(a).

While many judges understand that this knee-jerk reaction to a non-settled custody matter is not necessarily the best thing for the case, the parties or the children, many others do not understand that a contested custody case should not automatically engender the appointment of a legal representative for the children (or a parenting coordinator, forensic evaluation, etc.). The court's decision to refrain from appointing an attorney for the child is not per se erroneous, as the appointment remains within the court's discretion. A.C. v D.R., 36 AD3d 465 (1st Dept 2007).

Certainly, many parents, intentionally or unintentionally, try to influence the children. The controlling mother, the newly enlightened “Mr. Mom,” and the giver of the heretofore forbidden puppy are some stereotypical examples of the intentional persuader. Others influence unintentionally, out of confusion, na'vet', or fear of the other parent's motivations/intentions and of the unknown future. Also into the mix may be added the child's purposeful as well as innocent manipulations, which can become highly exacerbated by some children's attorneys, who overstep and continue to wrongfully believe that they are in fact an arm of the court or surrogate judge. We see this all too often, and many courts permit it.

The point here is not a blanket indictment of children's attorneys; it is an assertion that further empowering children in the midst of the parents' litigation is very often counter-productive, violative of due process and against the children's best interests. This situation engenders broad manipulation, which impinges upon the parents' right to fairly present their cases or to self-determine the outcome.

Official Change in the Role of the Children's Attorney

Historically, an attorney appointed to represent a child was referred to as the “Law Guardian.” Family Court Act, Article 2. That attorney's role was often seen as an extension of the court, despite the lack of authority for such a position. Criticism began increasing in some appellate decisions. See, e.g., Rueckert v. Reilly, 282 AD2d 608 (2nd Dept. 2001); Graham v. Graham, 24 AD3d 1051 (3rd Dept. 2005); Cobb v. Cobb, 4 AD3d 747 (4th Dept 2004). This criticism was encapsulated in the 2006 Report of the Matrimonial Commission, which posited that the name “Law Guardian” should be changed to “Attorney for the Child,” and that such an attorney was not to be considered a fiduciary or arm of the court. Matrimonial Commission Report to the Chief Judge of the State of New York, February 2006 at 39-44. Thereafter, the Rules of the Chief Judge were amended in 2007 to define this attorney's role and ensure that he or she did not have greater access to the court than any other attorney in the proceeding.

The amendment indicates that 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.” 22 NYCRR '7.2(b). According to 22 NYCRR '7.2(b), in non-juvenile delinquency proceedings, the attorney for the child must zealously advocate that child's position. In ascertaining the child's position, the attorney for the child 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.

If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of that child, even if the attorney for the child believes that what the child wants is not in his or her 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.

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, he or she 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.

It remains improper for the child's attorney to render a report to the court. Weiglhofer v. Weiglhofer, 1 AD3d' 786 (3rd Dept. 2003); Graham v. Graham, 24 AD3d 1051 (3rd Dept. 2005); Rheingold v. Rheingold, 4 AD3d 406 (2nd Dept. 2004); Usack v. Usack, 17 AD3d 736 (3rd Dept. 2005). The child's attorney should not provide an opinion as to what is in the child's best interests. In Re Derrick Shea D., 22 AD3d 753 (2nd Dept. 2005). It has been held that it is error for the court to rely even on oral reporting from the child's attorney. (Cervera v. Bressler, 50 AD3d 837, 841 [2008], quoting Weiglhofer v. Weiglhofer, 1 AD3d 786, 789 n (2003) (to the extent Family Court relied on detailed accounts provided by the attorney for the child concerning her conversations with the child, it was inappropriate for an attorney for the child to present “'reports containing facts which are not part of the record'”; see also 22 NYCRR 7.2 (b); Matter of New v. Sharma, 91 AD3d 652 (2nd Dept. 2012).)

While attorneys for the children, as advocates, may make their positions known to the court orally or in writing, presenting reports containing facts which are not part of the record, or making ex parte submissions to the court, are inappropriate practices. Matter of Swinson v. Brewington, 84 AD3d 1251 (2nd Dept. 2011). And although attorneys for the children may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), courts should not ask law guardians for their “recommendations,” as they are advocates, not advisers to the court. Matter of Devon XX, 20 AD3d 639 (3rd Dept. 2005).

Furthermore, no basis exists to disqualify a child's attorney who, having determined that the child is unimpaired in accordance with local standards, has throughout properly acted as the child's advocate rather than as an aide to the court in determining the child's best interests. Rogovin v. Rogovin, 27 AD3d 233, (1st Dept. 2006).

The Reality

Unfortunately, it remains all too common for the court to see the newly renamed “Attorney for the Child” if not as an aid to the court, then as a purported “impartial” and “independent” sounding board from whom the court will hear first at any conference. In addition, and notwithstanding the purported equalization of the playing field and elimination of ex parte communications, attorneys for the parties continue to be excluded from the court's in camera “Lincoln” hearings with children and their attorneys. The other attorneys then remain completely in the dark as to what transpired, with the record of the in camera hearing sealed even at the appellate level unless otherwise directed. CPLR
' 4019(b); Matter of Ladd v. Bellavia, 151 AD2d 1015 (4th Dept. 1989).

Accordingly, the litigants and their counsel are at a procedural and substantive disadvantage, with the children's attorney again assuming a more intimate and, in effect, secretive role with the court. Thus, there is an argument to be made for the parents' attorneys' participation in the in camera process beyond simply having the possible opportunity to submit questions to the court. Matter of Sellen v. Wright, 229 AD2d 680 (3rd Dept. 1996); Verry v. Verry, 63 AD3d 1228 (3rd Dept. 2009); Matter of Sandra S. v. Abdul S., 30 Misc.3d 797 (Sup Ct., Kings Cty. 2010).

What then of the rights of due process, which are supposed to vest in the parents? After all, they are the only actual parties to the proceeding, they are the recipients of the relief awarded by the court, and it is they who have the contractual right as the named parties to enter into agreements and stipulations settling the matter.

The Balancing Act

The ongoing disparate treatment of attorneys for the children versus those of the parents, though perhaps well-intentioned, violates the parents' right of due process and too often over-empowers children. This is not to say that there is no time or place for a child's influence to be paramount. Appreciation for the court's position in protecting the child, particularly where parental abuse and intimidation of the child exists, goes almost without saying. And there is sometimes a need to permit the child, in a proper circumstance, to voice his or her opinion and to be able to do so with the benefit of counsel and without fear of reprisal.

However, while it might seem a controversial suggestion, it is time that a better balance is struck, through judicial placement of greater limitations on the children's (and their attorneys') influence. The child's position in a custody matter is just one factor for the court to consider in making its determination of best interests; most often, it is a non-controlling factor. Dintruff v. McGreery, 34 NY2d 887 (1974); Lyons v. Lyons, 112 AD2d 232 (2nd Dept. 1985); Walden v. Walden, 112 AD2d 1035 (2nd Dept. 1985). Where the case is such that there is no pressing need to actually involve the children in the litigation process, they should remain uninvolved, without advocation and without opinion. When it is time for resolution, let it be known that the child does not get the right to sign off, approve, or reject the terms of settlement arrived at by parents with the imprimatur of the court.

It is an unfortunate circumstance that in 2013, and for many years previous, many children are all too sophisticated, too pampered and too powerful. The opinion of the 8- and 12-year-old in this context should, by and large, be irrelevant. Even in contested custody cases, maybe we can let (or if need be, force) the adults to be the adults and let the children be children more often than we do. The words “because I said so” might make a beneficial comeback. That would be in the child's best interest.

'

Lee Rosenberg, a member of this newsletter's Board of Editors, is a Fellow of the American Academy of Matrimonial Lawyers, Chair of the Nassau County Bar Association Matrimonial Law Committee, and a partner at Saltzman Chetkof & Rosenberg LLP, in Garden City. E-mail: [email protected].

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Despite amendments to statute and court rule, it unfortunately remains all too common for the court still improperly to see the renamed “Attorney for the Child” if not as an aid to the court, as a purported “impartial” and “independent” sounding board whom the court will hear first at any conference. (The title “Attorney for the Child” was officially changed from the term “Law Guardian” in accordance with the Laws of New York, 2010, Chapter 41 amending the Domestic Relations Law, Civil Practice Laws and Rules, Family Court Act, Public Health Law, and Social Services Law, as well as the Rules of the Chef Judge at 22 NYCRR ' 7.2.)

In this regard, the child's attorney often gives the court his view of the case, at least as it relates to his client, and sometimes includes his “opinion” on the parents, the parents' interactions, and their purported parenting skills. It then becomes a defensive battle for the parent's attorney to start trying to refute an opinion (sometimes skewed) that may very well be taken, if not as gospel, at least as a reliable starting point for discussion.'

I suggest that this ongoing disparate treatment, though perhaps well-intentioned, violates the parents' right of due process and too often improvidently empowers children in their familial relationships as their influence becomes litigation leverage. This is not to say that there is no time or place for a child's influence to be paramount, but our matrimonial courtrooms have lately become far too child-centric.

The Extent of Children's Knowledge

It has become traditional for many judges to address the parties in open court. Court rule now exists requiring the court to personally address the parties at the preliminary conference. 22 NYCRR ' 202.16(f)(1). More often than not, the court will at some point tell the litigants and/or counsel, in no uncertain terms, that the parties should insulate and isolate the children from their case and the issues between the two of them; that the children should not know what is discussed in court or what transpired in court; that the children should not know about court dates or what the judge has said or ruled; and that they should know only that both parents love them ' or words to that effect. Then, in the next breath, the court most often tells everyone that he or she is appointing an attorney for the children whose official stated role ' by Rule of the Chief Judge ' is to advocate the children's position on their behalf. 22 NYCRR '7.2(a).

While many judges understand that this knee-jerk reaction to a non-settled custody matter is not necessarily the best thing for the case, the parties or the children, many others do not understand that a contested custody case should not automatically engender the appointment of a legal representative for the children (or a parenting coordinator, forensic evaluation, etc.). The court's decision to refrain from appointing an attorney for the child is not per se erroneous, as the appointment remains within the court's discretion. A.C. v D.R., 36 AD3d 465 (1st Dept 2007).

Certainly, many parents, intentionally or unintentionally, try to influence the children. The controlling mother, the newly enlightened “Mr. Mom,” and the giver of the heretofore forbidden puppy are some stereotypical examples of the intentional persuader. Others influence unintentionally, out of confusion, na'vet', or fear of the other parent's motivations/intentions and of the unknown future. Also into the mix may be added the child's purposeful as well as innocent manipulations, which can become highly exacerbated by some children's attorneys, who overstep and continue to wrongfully believe that they are in fact an arm of the court or surrogate judge. We see this all too often, and many courts permit it.

The point here is not a blanket indictment of children's attorneys; it is an assertion that further empowering children in the midst of the parents' litigation is very often counter-productive, violative of due process and against the children's best interests. This situation engenders broad manipulation, which impinges upon the parents' right to fairly present their cases or to self-determine the outcome.

Official Change in the Role of the Children's Attorney

Historically, an attorney appointed to represent a child was referred to as the “Law Guardian.” Family Court Act, Article 2. That attorney's role was often seen as an extension of the court, despite the lack of authority for such a position. Criticism began increasing in some appellate decisions. See, e.g., Rueckert v. Reilly , 282 AD2d 608 (2nd Dept. 2001); Graham v. Graham , 24 AD3d 1051 (3rd Dept. 2005); Cobb v. Cobb , 4 AD3d 747 (4th Dept 2004). This criticism was encapsulated in the 2006 Report of the Matrimonial Commission, which posited that the name “Law Guardian” should be changed to “Attorney for the Child,” and that such an attorney was not to be considered a fiduciary or arm of the court. Matrimonial Commission Report to the Chief Judge of the State of New York, February 2006 at 39-44. Thereafter, the Rules of the Chief Judge were amended in 2007 to define this attorney's role and ensure that he or she did not have greater access to the court than any other attorney in the proceeding.

The amendment indicates that 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.” 22 NYCRR '7.2(b). According to 22 NYCRR '7.2(b), in non-juvenile delinquency proceedings, the attorney for the child must zealously advocate that child's position. In ascertaining the child's position, the attorney for the child 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.

If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of that child, even if the attorney for the child believes that what the child wants is not in his or her 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.

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, he or she 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.

It remains improper for the child's attorney to render a report to the court. Weiglhofer v. Weiglhofer, 1 AD3d' 786 (3rd Dept. 2003); Graham v. Graham , 24 AD3d 1051 (3rd Dept. 2005); Rheingold v. Rheingold , 4 AD3d 406 (2nd Dept. 2004); Usack v. Usack , 17 AD3d 736 (3rd Dept. 2005). The child's attorney should not provide an opinion as to what is in the child's best interests. In Re Derrick Shea D., 22 AD3d 753 (2nd Dept. 2005). It has been held that it is error for the court to rely even on oral reporting from the child's attorney. ( Cervera v. Bressler , 50 AD3d 837, 841 [2008], quoting Weiglhofer v. Weiglhofer , 1 AD3d 786, 789 n (2003) (to the extent Family Court relied on detailed accounts provided by the attorney for the child concerning her conversations with the child, it was inappropriate for an attorney for the child to present “'reports containing facts which are not part of the record'”; see also 22 NYCRR 7.2 (b); Matter of New v. Sharma , 91 AD3d 652 (2nd Dept. 2012).)

While attorneys for the children, as advocates, may make their positions known to the court orally or in writing, presenting reports containing facts which are not part of the record, or making ex parte submissions to the court, are inappropriate practices. Matter of Swinson v. Brewington , 84 AD3d 1251 (2nd Dept. 2011). And although attorneys for the children may make their positions known to the court orally or in writing (by way of, among other methods, briefs or summations), courts should not ask law guardians for their “recommendations,” as they are advocates, not advisers to the court. Matter of Devon XX, 20 AD3d 639 (3rd Dept. 2005).

Furthermore, no basis exists to disqualify a child's attorney who, having determined that the child is unimpaired in accordance with local standards, has throughout properly acted as the child's advocate rather than as an aide to the court in determining the child's best interests. Rogovin v. Rogovin , 27 AD3d 233, (1st Dept. 2006).

The Reality

Unfortunately, it remains all too common for the court to see the newly renamed “Attorney for the Child” if not as an aid to the court, then as a purported “impartial” and “independent” sounding board from whom the court will hear first at any conference. In addition, and notwithstanding the purported equalization of the playing field and elimination of ex parte communications, attorneys for the parties continue to be excluded from the court's in camera “Lincoln” hearings with children and their attorneys. The other attorneys then remain completely in the dark as to what transpired, with the record of the in camera hearing sealed even at the appellate level unless otherwise directed. CPLR
' 4019(b); Matter of Ladd v. Bellavia , 151 AD2d 1015 (4th Dept. 1989).

Accordingly, the litigants and their counsel are at a procedural and substantive disadvantage, with the children's attorney again assuming a more intimate and, in effect, secretive role with the court. Thus, there is an argument to be made for the parents' attorneys' participation in the in camera process beyond simply having the possible opportunity to submit questions to the court. Matter of Sellen v. Wright , 229 AD2d 680 (3rd Dept. 1996); Verry v. Verry , 63 AD3d 1228 (3rd Dept. 2009); Matter of Sandra S. v. Abdul S. , 30 Misc.3d 797 (Sup Ct., Kings Cty. 2010).

What then of the rights of due process, which are supposed to vest in the parents? After all, they are the only actual parties to the proceeding, they are the recipients of the relief awarded by the court, and it is they who have the contractual right as the named parties to enter into agreements and stipulations settling the matter.

The Balancing Act

The ongoing disparate treatment of attorneys for the children versus those of the parents, though perhaps well-intentioned, violates the parents' right of due process and too often over-empowers children. This is not to say that there is no time or place for a child's influence to be paramount. Appreciation for the court's position in protecting the child, particularly where parental abuse and intimidation of the child exists, goes almost without saying. And there is sometimes a need to permit the child, in a proper circumstance, to voice his or her opinion and to be able to do so with the benefit of counsel and without fear of reprisal.

However, while it might seem a controversial suggestion, it is time that a better balance is struck, through judicial placement of greater limitations on the children's (and their attorneys') influence. The child's position in a custody matter is just one factor for the court to consider in making its determination of best interests; most often, it is a non-controlling factor. Dintruff v. McGreery , 34 NY2d 887 (1974); Lyons v. Lyons , 112 AD2d 232 (2nd Dept. 1985); Walden v. Walden , 112 AD2d 1035 (2nd Dept. 1985). Where the case is such that there is no pressing need to actually involve the children in the litigation process, they should remain uninvolved, without advocation and without opinion. When it is time for resolution, let it be known that the child does not get the right to sign off, approve, or reject the terms of settlement arrived at by parents with the imprimatur of the court.

It is an unfortunate circumstance that in 2013, and for many years previous, many children are all too sophisticated, too pampered and too powerful. The opinion of the 8- and 12-year-old in this context should, by and large, be irrelevant. Even in contested custody cases, maybe we can let (or if need be, force) the adults to be the adults and let the children be children more often than we do. The words “because I said so” might make a beneficial comeback. That would be in the child's best interest.

'

Lee Rosenberg, a member of this newsletter's Board of Editors, is a Fellow of the American Academy of Matrimonial Lawyers, Chair of the Nassau County Bar Association Matrimonial Law Committee, and a partner at Saltzman Chetkof & Rosenberg LLP, in Garden City. E-mail: [email protected].

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