| Naomi C. v Russell A. |
| 2008 NY Slip Op 00981 [48 AD3d 203] |
| February 5, 2008 |
| Appellate Division, First Department |
| Naomi C., Appellant, v Russell A.,Respondent. |
—[*1] Russell A., respondent pro se.
Order, Family Court, New York County (Helen C. Sturm, J.), entered on or about August 9,2007, which dismissed, without a hearing and without prejudice, the petition to modify an orderof custody, unanimously affirmed, without costs.
Petitioner's contention that sufficient grounds exist to modify the parties' so-orderedstipulation is without merit; neither custody nor visitation should be changed without a hearing(see e.g. David W. v Julia W., 158 AD2d 1, 6 [1990]; Matter of Fischbein vFischbein, 55 AD2d 885 [1977]). However, Family Court was not required to hold a hearinghere because petitioner failed to make the necessary evidentiary showing (see David W.,158 AD2d at 7).
Although the court was warranted in dismissing the petition on its face, we point out that thequestioning of the Law Guardian (now called Attorney for the Child) by the court is somethingthat should not be repeated. With the parties present, the court asked the Law Guardian, on therecord, to discuss the position of the 10-year-old child regarding how well the current custodyarrangement was working. Although the court was correct to disallow the "cross-examination" ofthe Law Guardian by petitioner's counsel, the court should not consider the hearsay opinion of achild in determining the legal sufficiency of a pleading in the first place. Most importantly, suchcolloquy makes the Law Guardian an unsworn witness, a position in which no attorney should beplaced. "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" (Rules ofChief Judge [22 NYCRR] § 7.2 [b]).[*2]
We have considered petitioner's remaining arguments andfind them unavailing. Concur—Lippman, P.J., Gonzalez, Buckley and Sweeny, JJ.