| Matter of Krieger v Krieger |
| 2009 NY Slip Op 06847 [65 AD3d 1350] |
| September 29, 2009 |
| Appellate Division, Second Department |
| In the Matter of Brian Krieger, Respondent, v TraciKrieger, Respondent. Janis Parazzelli, Nonparty Appellant. |
—[*1] Donna M. McCabe, East Atlantic Beach, N.Y., for petitioner-respondent Brian Krieger. Roberta Nancy Kaufman, Hicksville, N.Y., for respondent-respondent TraciKrieger.
In a child custody proceeding pursuant to Family Court Act article 6, the attorney for thechild appeals, as limited by her brief, from so much of an order of the Family Court, NassauCounty (Phillips, Ct Atty Referee), dated April 14, 2008, as, upon the mother's default inpersonally appearing on scheduled hearing dates, granted the father's petition to modify an orderof the same court dated January 5, 2006, inter alia, awarding the parties joint custody of thesubject child, so as to allow the father to relocate with the child to the State of Ohio, andawarded sole custody of the child to the father.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Nassau County, for further proceedings in accordance herewith.
By order dated January 5, 2006, entered on consent of the parties, inter alia, the parties wereawarded joint custody of their adolescent daughter, with residential custody to the father. In May2007, the father filed a petition to modify the order dated January 5, 2006, so as to allow him torelocate with the child to the State of Ohio. By order dated April 14, 2008, upon the mother'sdefault in personally appearing on scheduled hearing dates, the Family Court granted the father'spetition, and awarded sole custody of the child to the father.
The attorney for the child appeals from the order dated April 14, 2008, asserting that anumber of errors were committed by the Family Court which require reversal of the award ofsole custody to the father and the grant of permission for him to relocate with the child to theState of Ohio.
The appointment of an attorney to represent a child in Family Court proceedings, whetherthe appointment is required by statute or, as in this case, the appointment is made in the court'sdiscretion, is based on the legislative determination "that counsel is often indispensable to apractical realization of due process of law and may be helpful in making reasoned determinationsof fact and proper orders of disposition" (Family Ct Act § 241).[*2]
The right to counsel has been held to imply "that thecourt will afford a respondent and his or her attorney a reasonable opportunity to appear andpresent evidence and arguments" (Matter of Scott v Scott, 62 AD3d 714, 715 [2009]).An attorney appointed to represent a child in a Family Court proceeding should be accorded thesame reasonable opportunity to appear and present evidence and arguments on behalf of thechild as is accorded the child's mother or father, or other interested party.
Under the circumstances of this case, the Family Court improvidently exercised its discretionin failing to adjourn the hearing to provide the attorney for the child with a reasonableopportunity to present additional witnesses (see Matter of Czaban v Czaban, 24 AD3d547 [2005]; cf. Matter of Steven B., 6 NY3d 888 [2006]; Diamond v Diamante,57 AD3d 826, 827 [2008]).
The rules applicable to the representation of a child in a Family Court proceeding requirethat the attorney adhere to the same ethical requirements applicable to all attorneys: that theattorney zealously advocate the child's position; that the attorney have a thorough knowledge ofthe child's circumstances; and that the attorney consult with and advise the child, consistent withthe child's capacities, in ascertaining the child's position (see 22 NYCRR 7.2 [b], [c], [d][1]). In addition, the attorney for the child must follow the child's wishes to refrain from taking aposition for or against requested relief where the child has the capacity to take such a positionand is not at imminent risk of harm, regardless of whether the attorney believes that the grant ordenial of the requested relief would be in the child's best interest (see 22 NYCRR 7.2 [d][2]).
The Family Court erred, however, in requiring the attorney for the child to offer experttestimony on the issues of the child's capacity to articulate her desires and whether the childwould be at imminent risk of harm if she moved with the father to the State of Ohio, prior to theattorney advocating a position that could be viewed as contrary to the child's wishes. The Rulesof the Chief Judge do not impose such a requirement (see 22 NYCRR 7.2).
The Family Court also erred in awarding sole custody of the child to the father, as the fatherdid not request such relief in his modification petition.
Accordingly, we remit the matter to the Family Court, Nassau County, for a new hearing onthe father's modification petition. Upon remittal, the hearing on the father's petition shall beconducted before a different judicial officer; and given the intemperate remarks made by theattorney for the child, and the attorney's confrontational approach toward the court, the FamilyCourt may consider whether it is appropriate to appoint a new attorney for the child or continuethe representation.
The parties' remaining contentions either are not properly before this Court or need not bereached in light of our determination. Spolzino, J.P., Angiolillo, Chambers and Hall, JJ., concur.