The Role of Attorney for the Child in Custody and Visitation Disputes

Sometime ago, I became certified as an Attorney for the Child, formerly known as a Law Guardian. Since that time I represented children, primarily in Family Court, in various custody and visitation proceedings, as well as PINS (person in need of supervision) and juvenile delinquency cases.
One issue that commonly arises is that I am asked, typically by the parties, what my report to the court is going to be. I usually respond that I do not have a report to deliver, and that the reason I was appointed is to act as an advocate for the parties’ child or children. With that in mind, here are some of the basics related to what the attorney for the child does.
The Attorney for the Child is usually appointed by the court in custody and visitation disputes. He/she is there to represent the child’s interests. The person chosen to act as the Attorney for the Child is usually a lawyer who is experienced in custody matters.
Normally, the Attorney for the Child speaks with the child or children and may also speak to either or both of the parents. The Attorney may also speak with school personnel, a child’s therapist, the forensic examiner appointed in the case, or anyone else the Attorney considers appropriate to obtaining relevant and necessary information to enable him/her to state the child’s position to the Court on behalf of the child. If a child is too young to verbalize his/her thoughts, the Attorney for the Child may substitute his judgment and argue the position deemed to be in his client’s best interests.
At a hearing or during a trial, the Attorney for the Child has the right to call witnesses and to cross-examine on behalf of the child. The Law Guardian’s role is to assure that the Court hears an unbiased view of what is in the child’s best interest, a view not colored by either parent promoting his or her own agenda.
The Attorney for the Child will frequently act as a buffer between two hostile parents in an attempt to obtain a resolution that is in the child’s best interest. The most common criticism if that the Attorney for the Child frequently appears to aligns him/herself with one parent, losing objectivity and effectively becoming a second advocate for one parent.
A common mistake that parents make in custody disputes is to forget that the Attorney for the Child is the child’s attorney and not their attorney. Your own attorney will keep your communications with him/her confidential and will reveal only what is in your best interests. Your own lawyer will work with you to present your arguments in the best light. That clearly is not the same as the Attorney for the Child’s role.
In discussions with the Attorney for the Child, parents need to give reasons they believe their child’s best interests are served by that parent serving as the primary custodian or that the child will be well served by requested changes in visitation. They need to describe their positive contributions to raising the child.
On November 8, 2008, the Appellate Division, Fourth Department, has issued Guidelines for Attorneys for the Children that are applicable to both Supreme and Family Court proceedings. These guidelines must be followed by all attorneys for the children practicing in the judicial districts included in the Fourth Department. In my opinion, the guidelines represent a clear and cogent set of rules and all attorneys handling family law matters should have at least a passing familiarity with the guidelines as well.

Child Support, Abandonment and Constructive Emancipation of a Child

I am asked occasionally whether a parent’s child support obligation can be terminated on the grounds that the child stopped all contact with the parent in order to avoid parental control. My usual response is that it can be done, but the parent must establish either abandonment or constructive emancipation, and faces a substantial burden of proof.
The Family Court Act §413 mandates that parents support their children until they reach the age of 21. The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal, and that a parent may impose reasonable regulations. Generally, where a minor of employable age and in full possession of her faculties, voluntarily and without cause, abandons the parent’s home, against the will of the parent and for the purpose of avoiding parental control, the child forfeits his/her right to demand support. Roe v. Doe, 29 N.Y.2d 188 (1971); Matter of Ontario County Department of Social Services (Christopher L.) v. Gail K., 269 A.D.2d 847 (4th Dept. 2000), leave denied, 95 N.Y.2d 760 (2000).
While the duty to support is a continuing one, the child’s right to support and the parent’s right to custody and services are reciprocal. Roe v. Doe, 29 N.Y.2d 188 (1971). Thus, a parent, in return for maintenance and support, may establish and impose reasonable regulations for his/her child. In Roe v. Doe, supra, the Court of Appeals explained:

Accordingly, though the question is novel in this State, it has been held, in circumstances such as here, that where by no fault on the parent’s part, a child “voluntarily abandons the parent’s home for the purpose of seeking its fortune in the world or to avoid parental discipline and restraint [the child] forfeits the claim to support” . . . To hold otherwise would allow, at least in the case before us, a minor of employable age to deliberately flout the legitimate mandates of her father while requiring that the latter support her in her decision to place herself beyond his effective control.

The doctrine of constructive emancipation is applicable to the non-custodial parent where the child unreasonably refuses all contact and visitation. Matter of Commissioner of Social Services (Jones) v. Jones-Gamble, 227 A.D.2d 618 (2nd Dept. 1996). In that case, the court held that the evidence clearly established that the child wanted no relationship with her father. Despite the father’s prior support payments, there was essentially no parent-child relationship between them. The appellate court held that, to require the father to provide reimbursement for the support of a daughter who had renounced and abandoned him would have clearly resulted in an injustice under the facts of that case.
In the Fourth Department case, Perez v. Perez, 239 A.D.2d 868 (4th Dept. 1997), appeal dismissed, 91 N.Y.2d 956 (1998), the record established that the parties’ 18 year old daughter had refused to visit with the father or to have any relationship with him. That child was found to be a minor of employable age and in full possession of her faculties, who had voluntarily refused to have a relationship with plaintiff. The child thereby forfeited her right to support from her father. Accordingly, the Fourth Department rejected the mother’s contention that the lower court erred in modifying the parties’ divorce decree by suspending father’s obligation to pay child support for the parties’ child until further order of the court.
Children of employable age and in full possession of their faculties who voluntarily and without cause abandon their home, against the will of their parents and for the purpose of avoiding parental control, forfeit their right to demand support, even if they are not financially self-sufficient. Guevara v. Ubillus, 47 A.D.3d 715 (2nd Dept. 2008). In that case, petition for child support was denied where the petitioner, without good cause, abandoned the mother’s home on her 18th birthday in order to avoid parental control and to gain independence from her mother’s restrictive household rules; the petitioner was found to have abandoned her mother’s home against the mother’s will and without cause.
In Rubino v. Morgan, 224 A.D.2d 903 (3d Dept. 1996), the Appellate Division held that the lower correct properly terminated the father’s support obligation on the grounds that his daughter’s refusal to visit with him and the child’s unprovoked rejection of him constituted abandonment. The Third Department noted that at the time of the hearing, the daughter was 17 years old, and she had refused to visit with the father since she was 14 years old. Even after the daughter refused to visit with her father, he continued for years to send letters and cards to her. The letters were never answered. He also attempted to talk with the child, without success. His actions and requests were not arbitrary, and there was no evidence of malfeasance, misconduct or neglect. The Appellate Division upheld the lower court’s findings that the daughter chose to permanently breach her relationship with the father, notwithstanding her generalized claim of “emotional abuse”, and that the father did not contribute significantly to his daughter’s decision to distance herself from him.
Furthermore, where it can be established by the non-custodial parent that the custodial parent has unjustifiably frustrated the non-custodial parent’s right of reasonable access, child support payments may be suspended. Usack v. Usack, 17 A.D.3d 736 (3d Dept. 2005). In that case, the father had encouraged the children’s unbridled enmity toward, and total exclusion of, their mother through a course of conduct calculated to inflict the most grievous emotional injury upon her. The Appellate Division held that mother’s child support obligation should have been suspended due to the father’s deliberate actions in alienating the parties’ children from her.

Basics of Collaborative Family Law

In New York, Collaborative Law is a new form of dispute resolution that is rapidly gaining popularity. In a collaborative divorce case, both spouses are represented by lawyers in the traditional attorney-client relationship. In order to participate in the process, the clients unconditionally promise not to go to court. If the parties terminate the collaborative law process and decide to go to court, both attorneys are obligated to withdraw. With this non-combative approach, both clients and counsel are compelled to seek a negotiated agreement.

This approach will keep divorce civil, cooperative, and can even speed up the New York divorce process, since the clients are not relying on the court’s schedule. Another benefit to choosing Collaborative Law is that because both spouses are able to work together on an agreement, there is a greater chance that both parties will voluntarily follow its terms in the future.

Collaborative divorce in New York uses informal methods of financial disclosure such as voluntary production of financial documents, four-way conferences, negotiation, and where needed, outside professionals, including family counselors, accountants and financial planners.

Collaborative law creates a cooperative atmosphere, unlike the adversarial atmosphere of the courtroom. Unlike mediation and arbitration, Collaborative Law provides the client with trained legal advocates, without the court costs. A New York divorce handled in court is likely to be much more expensive and time consuming than the costs and time involved in collaborative law.

Collaboration represents the middle ground between mediation and full adversarial litigation. In mediation, the parties meet with a neutral mediator who assists the parties to find a compromise. In mediation the parties advocate for themselves, the mediator cannot give any party advice or assist either of the parties in advocating their position.

In the collaborative setting in New York, each spouse is fully represented by a competent family law attorney protecting their interests. Collaborative attorneys can also prepare all necessary paperwork for their clients and, if requested, can attend the required court hearing where the divorce agreement is presented to the court for approval.

Not every attorney practices Collaborative Law. Not every client is willing to give up their right to have the divorce adjudicated in court. For many attorneys, however, their trial court experience has led them to a belief that the commitment of their skill and time to a litigated case often does not achieve an outcome which is cost-effective, or even a good solution for their clients’ problems. Similarly, many clients are looking for experienced legal counsel, who can bring knowledgeable guidance and provide skilled advocacy, but do no want litigation. In those situations, Collaborative Law is an excellent option.

Collaborative Law relies on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well-being of the family. The parties engage in a series of meetings with their attorneys to discuss all issues and concerns, coordinate necessary research, retain the services of any necessary experts and discuss the future needs of the parties. It is hoped that through honest and open communication the parties, with the assistance of their attorneys, will reach a mutually beneficial agreement.

Collaborative Law requires each party and each attorney to take a reasoned position on all issues. Where such positions differ, all participants use their best efforts to create proposals that meet the fundamental needs of both parties, and, if necessary, to compromise to reach a settlement of all issues.

Some General Principals and Guidelines of Collaborative Law:

Negotiation through cooperation rather than adversarial strategies
Practicing law through problem-solving negotiations in which the parties are proactive, seek
to understand and to be understood
The parties are responsible for the action and the outcome
The parties develop common ground rather than focus on differences
The parties seek to understand the other person’s interests and concerns, which will lead to
creative solutions to problems
The parties seek to resolve issues and concerns with each accepting and supporting the
other person’s opinions

The attorneys should:

advise the clients of the law that applies to their circumstances.
be a model for their clients acting in a cooperative, honest and dignified manner with mutual r
respect to everyone involved in this process.
guide their clients through the process using active listening and respecting each party’s
opinions and concerns.
always use neutral language in speaking and writing.
bring stability and reason to emotionally charged situations.
work together to provide all discovery and disclosure so that the parties can make informed
avoid using adversarial techniques or tactics.
bring in any other needed professionals (appraisers, financial consultants, communication
specialists) to assist the parties in reaching agreement and to overcome any impasses.
file documents with the Court that are prepared with the mutual agreement of all parties. For
example, some parties have filed a “Joint Original Petition for Divorce”.

Clients should:

be honest.
take responsibility for the outcome of the issues that are not resolved.
adhere to the principles and guidelines of the collaborative approach.
explore differences in perspective, interests and desired outcomes rather than react to them.
look for creative solutions to their problems.
actively listen to their spouses’ concerns, recognize the needs of the other spouse, and treat
their spouse with respect and patience.
respect everyone involved in the Collaborative Law process.
be patient with the Collaborative Law process.

Same-Sex Spouse Needn’t Be Certified to Adopt Partner’s Child

In November of 2008, I wrote about New York courts granting a divorce to a same sex couple. In C.M. v. C.C. (Sup. Ct. New York Co. October 14, 2008), the trial court held that the New York court had subject matter jurisdiction to grant a divorce to a same sex couple who were married in Massachussetts. The trial court held that in following Martinez v. County of Monroe and other cases dealing with recognition of the same sex marriage, it had the subject marriage jurisdiction and the divorce case between two women could continue. Since that time, we are seeing various rulings that followed the holding in Martinez. A few days ago, in Matter of Donna S., 2009 N.Y. Slip Op. 29009 (Fam. Ct., Monroe County, AC-14386-08), Judge Joan S. Kohout, held that there was no need for the same-sex spouse of a woman due to give birth in March to seek pre-certification to adopt her partner’s child. Judge Kohout ruled that because the couple’s Canadian marriage is recognized under New York law, the spouse could be treated exactly the same as the husband of a woman who became pregnant through donor insemination, in which case neither pre-certification nor an adoption proceeding would be necessary to establish a parental relationship with the child.

According to Judge Kohout’s opinion, Donna R.S. and Lisa P. were married on July 4, 2007, in Ontario, Canada. Lisa has become pregnant through donor insemination, and is due to give birth in March. Donna initiated the process of being approved as an adoptive parent, with the intention of adopting the child when he/she is born. As part of a normal adoption process, she submitted to a home study by a social worker, who produced a positive report, and then she submitted her petition to the court to be “pre-certified” as an adoptive parent, so the adoption procedure could be handled expeditiously after the child is born.

Pre-certification is a legal process that is typically handled at the start of every adoption. A successful pre-certification process is critical and involves filing pleadings with the appropriate court, a home study, child abuse clearance and criminal record check. Once a prospective adoptive parent has been precertified, he/she can proceed with pursuing a domestic adoption. The “certification” includes a homestudy, child abuse clearance and criminal record check prior to the adoption, and a follow-up homestudy before the adoption is finalized. This requirement was brought into being as a result of the infamous Steinberg case, so that all parties in the adoption process are protected.

The petition did not specify that Donna was seeking to adopt any particular child, but merely wished to be certified as qualified in general to be an adoptive parent. The home study made it clear to the court that her intention was to adopt her same-sex spouse’s child.

Judge Kohout considered the pre-certification process to be unnecessary. Pointing out that the Appellate Division’s ruling last year in Martinez means that “the marriage of same sex couples legally married in other jurisdictions must be recognized by New York,” and mentioning as well that Governor David Paterson had directed New York state agencies to “apply statutes and regulations in a gender neutral manner to same sex parties validly married in another jurisdiction,” Judge Kohout decided to treat Donna similarly to the husband of a woman who has become pregnant through donor insemination.

In those situations, an adoption proceeding is unnecessary. Spouse’s parental status is established by the parties’ execution of a consent form, indicating their agreement that the birth mother’s spouse will be the legal parent of the child.

Additionally, Judge Kohout considered an alternative approach: “Since Ms. S. is the spouse of Ms. P., she will at the very least be considered a step-parent to Ms. P.’s child after the child’s birth. Step-parents are not required to be pre-certified as qualified adoptive parents for the purpose of adopting their spouse’s child.” However, step-parents would have to fulfill a one year waiting period to adopt, or get approval to waive the waiting period from the court.

In conclusion, Judge Kohout stated that the situation could be resolved by the statute governing donor insemination, pointing out that “a child born to a married woman by artificial insemination is deemed the legal child of the husband if both spouses execute a consent to that effect. Given the holding in Martinez, it would seem that by the simple execution of a consent, Ms. S. could become the baby’s legal parent without the necessity of an adoption.”

However, since all the paperwork was in order and there was a positive home study report on file, Judge Kohout granted the pre-certification petition, so the petitioner was eligible to adopt a child until the expiration of the petition in May 2010.

Custody and Non-Parents

In New York, non-parents, including grandparents, may obtain custody under limited circumstances. However, non-parents face a significant burden of proof which needs to be surmounted in order to obtain custody. Where a non-parent can show “extraordinary circumstances”, a court may find that they have standing to seek custody. After determining whether a non-parent has standing, the court must still decide whether allowing such person to have custody is in the best interests of the child, using the standard best interest of the child test, in the same way that parental custody is determined.

The origins of “extraordinary circumstances” standard are more than 30 years old. In 1976, the New York State Court of Appeals held that when a custody dispute between a parent and a non-parent arises, the parent’s superior right to custody could be disturbed only if extraordinary circumstances are proven and if it can be shown that it is in the child’s best interest for a non-parent to have custody. Bennett v. Jeffreys, 40 N.Y.2d 543 (1976). Typical examples of extraordinary circumstances are when a parent is unfit, where there is persistent neglect of a child by a parent, or where the parent abandons the child.

The Bennett case involved a 15 year old unwed mother who gave birth to her child while living with her parents. Under pressure from her mother, the girl reluctantly transferred the child to the care of Ms. Jeffreys, a former classmate of her mother. Ms. Jeffreys failed to adopt the child because she couldn’t afford to. When the biological mother was 23, and about to graduate from college, she brought a proceeding in Family Court to obtain custody of her child. But the Family Court dismissed the petition, directing that custody of the child remain with Ms. Jeffreys. The biological mother was awarded visitation rights.

The Appellate Division reversed the decision of the Family Court and directed Ms. Jeffreys to return custody to the biological mother because she had not surrendered nor abandoned the child, and was not unfit. The Court of Appeals subsequently reversed the Appellate Division, holding that where “extraordinary circumstances” exist such as an extended separation of the child from his or her biological parents, the best interests of the child were superior to the custody rights of a biological parent.

Extraordinary circumstances differ from case to case, however, the recent amendment to the Domestic Relations Law §72 gives grandparents extra consideration in that an “extraordinary disruption of custody” of at least 24 months, is described by the statute as an “extraordinary circumstance”.

Termination of Parental Rights and Step-Parent Adoption

Occasionally someone comes to consult with me and tells me that the biological parent of their child wants to terminate his or her parental rights voluntarily. My typical response is, that even in a situation where the parent is willing to give up those rights voluntarily, they will not be terminated unless the child is adopted by a step-parent. Because of the strong public policy considerations against depriving children of their parent’s emotional and financial support, New York requires that someone else must step into the shoes of the biological parent, who no longer wishes to be a part of the child’s life. The adopting step-parent must want to undertake the financial and legal responsibility for the child and also to agree to release the non-spouse biological parent of their parental responsibilities.

New York law requires that the child’s parents both consent to the adoption, unless:

1) The parent has failed to visit and communicate with the child for six months.
2) The parent is mentally ill or mentally retarded and is unable to care for the child.
3) The parent has surrendered to an authorized agency under social services law.
4) The parent’s child has had a guardian appointed under social services law.
5) The parent has executed an instrument, which is irrevocable, denying the paternity of the child.

Once the step-parent has agreed to adopt the child, the child’s consent may be necessary. New York law requires the consent of children over fourteen years of age, unless the judge or surrogate in his or her discretion dispenses with such consent. Once the adoption is finalized and the order of adoption has been entered, the former parent will no longer be required to pay child support, but will continue to be responsible for arrears in child support. Also, the child’s birth certificate may be updated to replace the biological parent’s name with step-parent’s. In New York, step-parent adoption can be handled by either Family Court or Surrogate Court.

In addition to the step-parent adoption, parental rights may be terminated by a court of competent jurisdiction which has determined the child to be an abandoned child and the authorized agency, having care of the child, files a petition seeking termination of parental rights.

Enhanced Earnings, Child Support and Equitable Distribution Payments

If at the conclusion of the divorce action a party is to receive a stream of payments to pay that party’s equitable distribution award, does that money need to be included in the child support calculations? In Holterman v. Holterman, 3 N.Y.3d 1 (2004), the husband argued that the payment of $21,288 per year, the annual installment payment of wife’s distributive award of her share of enhanced earnings from his medical license, should be deducted from the computation of his income in determining his child support obligation under the CSSA and, concomitantly, that amount should be included as income attributable to wife. He claimed that the failure of the lower courts below to perform such reassignment of income results in “double dipping” from the same income stream–i.e., awarding both child support and equitable distribution of his future enhanced earnings from the same income source, his salary as a physician. Court of Appeals disagreed with the husband and held that his proposed reallocation formula, or any formula that required a deduction of a distributive award paid over a period of years from the licensed spouse’s income for purposes of calculating child support, is impermissible under the CSSA. The Court ruled that the CSSA does not provide for the deduction of distributive awards from income, whether based on enhanced earning capacity due to a professional license or otherwise. Nor does the CSSA authorize the inclusion of a distributive award as income to the parent receiving the award. This lack of inclusion in either the list of permissible statutory deductions or the definition of income is understandable because distributive awards “reflect, not income, but a property distribution” of the marital assets, regardless of whether such assets are being paid as an income stream.

Equitable Distribution of Professional Licenses, Enhanced Earnings and Maintenance

One of the critical categories of assets to be divided in the course of a divorce are professional degrees acquired during the marriage. Typical issues involving distribution of such licenses involve distribution of the license itself and also an evaluation how that asset impacts the title spouse’s income for computation of a potential maintenance award

In O’Brien v. O’Brien, 66 N.Y.2d 576 (1985), the Court of Appeals stated that the Domestic Relations Law should be given a liberal interpretation and held that a professional degree or license was “marital property,” subject to equitable distribution.

In McSparron v. McSparron, 87 N.Y.2d 275 (1995), Court of Appeals held that, even after a professional degree or license has been used by the licensee to establish and maintain a career, it does not “merge” with the career or ever lose its character as a separate, distributable asset. In eliminating the concept of “merger,” the Court of Appeals acknowledged that a professional license has an intrinsic value that it brings to the party who hold it and addressed the issue of valuing such asset in a way that avoids duplicative awards. The Court was concerned with making sure that the monetary value assigned to the license does not overlap with the value assigned to other marital assets derived from the license, such as the licensed spouse’s professional practice. It stated that “courts must be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from professional licenses.”

In Grunfeld v. Grunfeld, 94 N.Y.2d 696 (2000), the Court of Appeals, while upholding the valuation concepts set forth in McSparron, reversed the Appellate Division’s decision. The reason for the reversal was based on the lower court’s full distribution of the value of the law license as a marital asset, without a corresponding adjustment in the maintenance award. On its face, the lower court engaged in double counting inconsistent with McSparron and was therefore incorrect. The Supreme Court did not, however, explain how it considered defendant’s income from outside sources in determining the amount that the license distribution award should be reduced. For this reason, the case was remitted for further proceedings.

The above cases are critical in establishing values of professional licenses, enhanced earnings and potential maintenance awards. The post-Grunfeld cases are deeply concerned with the issues of valuation and need to be carefully reviewed each time a professional license is to be valued and distributed in a divorce action.

Assigned Counsel in Divorce and Custody Cases

I am often asked whether there is a right to assigned counsel in divorce and custody cases that are either brought or are pending in the Supreme Court. While assignment of counsel to those who cannot afford it is a common place occurrence in the Family Court, until fairly recently, there was no right to assigned counsel in the Supreme Court. However, the New York Legislature recognized that litigants in custody and visitation cases brought in the Supreme Court should have the same right to the assignment of free counsel as litigants in custody and visitation cases brought in the Family court. Thus, Judiciary Law §35 has been amended to require justices in the Supreme Court to assign counsel in such cases. The Supreme Court justices are now required to notify parties of the right to counsel, as well as the right to an adjournment to obtain counsel, and to the right to the appointment of free counsel, if they can not afford to retain an attorney. In divorce cases, the right to assigned counsel exists only where custody or visitation are at issue. Therefore, if you are a defendant in a divorce action, and the custody or visitation is at issue, you can have a court appointed attorney represent you if you cannot hire your own counsel.