Newton v. McFarlane

174 A.D.3d 67

103 N.Y.S.3d 445

In the Matter of Kwana NEWTON, Petitioner-Respondent,

v.Christopher MCFARLANE, Respondent;

Kaishawna M. (Anonymous), Nonparty-Appellant.

2017–13478

Docket Nos. V-20779-10/16I, V-33124-10/16I

Supreme Court, Appellate Division, Second Department, New York.

Argued—January 7, 2019

June 05, 2019

Karen P. Simmons, Brooklyn, N.Y. (Laura Solecki and Janet Neustaetter of counsel), attorney for the child, the nonparty-appellant.

Austin I. Idehen, Jamaica, NY, for petitioner-respondent.

Golding & Associates, PLLC, New York, N.Y. (Momodou Marong of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., RUTH C. BALKIN, SYLVIA O. HINDS–RADIX, LINDA CHRISTOPHER, JJ.

OPINION & ORDER

SCHEINKMAN, P.J.

This appeal raises several important issues pertinent to child custody determinations. We conclude that: (a) the attorney for the child has the authority to pursue an appeal on behalf of the child from an order determining the custody of the child; (b) the child is aggrieved, for appellate purposes, by an order determining custody; (c) the Family Court should not have held a full custody hearing without first determining whether the mother had alleged and established a sufficient change in circumstances to warrant an inquiry into whether the child's best interests were served by the existing custodial arrangement; and (d) the Family Court erred in failing to give due consideration to the expressed preferences of the child, who is a teenager.

For the reasons set forth below, the order appealed from should be reversed, and the mother's petition to modify a prior order of custody so as to award her sole legal and physical custody of the child should be dismissed.

Relevant Factual and Procedural Background

In 2013, the Family Court awarded the father sole legal and physical custody of the parties' child, a female who was born in January 2002 and is currently 17 years old. This Court affirmed (see Matter of McFarlane v. Newton , 127 A.D.3d 1199, 1199–1200, 5 N.Y.S.3d 910 ). In February 2016, after commencing two prior unsuccessful custody modification proceedings, the mother commenced this third modification proceeding seeking sole legal and physical custody of the child. The Family Court, over the objection of the attorney for the child, proceeded to hold a full custody hearing without first addressing whether the mother had alleged a sufficient change in circumstances to warrant an inquiry into whether the child's best interests were served by the existing custodial arrangement. The court also held in camera interviews with the child on October 25, 2016, and October 6, 2017.

After the hearing, the Family Court stated its conclusion that the mother had established the existence of sufficiently changed circumstances and that awarding sole custody to the mother was in the child's best interests; however, the court wholly failed to explain the bases for these conclusions in its order. The order merely stated:

"The Court finds that the mother has demonstrated sufficient change in circumstance to warrant a best interests review by the court. Upon review of all the testimony heard and evidence received, the Court finds that it is in the best interest of the child to reside with the petitioner mother. As such the petition for modification is granted."

While the court added that a "[f]ull decision [is] to follow," no such subsequent decision was ever issued.

The child, by her court-appointed attorney, appeals, contending that the Family Court's determinations that there was a change in circumstances and that awarding custody to the mother was in the child's best interests lacked a sound and substantial basis in the record. While the father has not filed his own notice of appeal, the father, in his brief to this Court, supports the position taken by the attorney for the child. The mother, in opposing the appeal, contends that the attorney for the child lacks "standing" to appeal on the child's behalf and that the child is not aggrieved by the order changing custody.

On the motion of the attorney for the child, this Court stayed enforcement of the order appealed from pending determination of this appeal.

The Attorney for the Child Has Authority to Pursue the Appeal

We first address the mother's contention that the attorney for the child lacks "standing" to appeal on behalf of the child from the custody determination. Although the mother characterizes her argument as one challenging the standing of the attorney for the child to take the appeal, in actuality, she is arguing that the attorney for the child lacks authority to take this appeal on behalf of the child. This Court has, in the past, consistently entertained appeals in custody cases taken solely by the child, through the attorney appointed to represent that child (see e.g. Matter of Noel v. Melle, 151 A.D.3d 1065, 58 N.Y.S.3d 475 ; Matter of Rodriguez–Donaghy v. Donaghy , 138 A.D.3d 1123, 28 N.Y.S.3d 907 ; Matter of Feldman v. Feldman , 79 A.D.3d 871, 912 N.Y.S.2d 438 ), albeit without discussing the authority of the attorney for the child to take an appeal on the child's behalf.

Children who are the subject of custody proceedings often require the assistance of counsel to help protect their interests, to help them articulate their perspectives, positions, and wishes to the court, and to assist them with advice and information during the pendency of the proceedings (see Family Ct Act § 241 ; see also NYSBA Committee on Children and the Law, Standards for Attorneys Representing Children in Custody, Visitation and Guardianship Proceedings , Jan. 2015, available at https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=55895 [last accessed May 15, 2019] ). When an attorney is appointed by the court to represent a child in a contested custody proceeding,^* that attorney must be afforded the same opportunity as the attorneys for the parents and other contestants to fully participate in the proceeding (see Matter of White v. White, 267 A.D.2d 888, 890, 700 N.Y.S.2d 537 ). An attorney appointed to represent a child in a custody proceeding has the duty and the obligation to zealously represent the child (see Matter of Donna Marie C. v. Kuni C. , 134 A.D.3d 430, 21 N.Y.S.3d 49 ). In order to fulfill that weighty responsibility, the appointed attorney for the child has the right, equal to the right of the attorneys for the litigants, to fully appear and participate in the litigation, including the right to call, examine, and cross-examine witnesses, and the right to advance arguments on behalf of the child (see Matter of Krieger v. Krieger , 65 A.D.3d 1350, 886 N.Y.S.2d 463 ). These rights do not evaporate upon the conclusion of the case in the hearing court; rather, these rights may be protected and enforced by the taking of an appeal on behalf of the child (see Matter of Michael S. v. Sultana R. , 163 A.D.3d 464, 473, 82 N.Y.S.3d 364 ).

The right of an attorney appointed to represent a child to take an appeal on behalf of the child is confirmed by section 1120(b) of the Family Court Act. That statute provides that whenever an attorney has been appointed by the Family Court to represent a child, the appointment continues without the necessity of a further court order where the attorney files a notice of appeal on behalf of the child or where one of the parties files a notice of appeal. The statute thus recognizes that an attorney appointed by the Family Court to represent a child has the right to pursue an appeal on behalf of the child.

Matter of McDermott v. Bale , 94 A.D.3d 1542, 943 N.Y.S.2d 708, relied upon by the mother, supports our conclusion that the attorney for the child has authority to appeal on the child's behalf. In McDermott , the attorney for the child refused to join in a settlement stipulation agreed to by the parents. The Family Court approved the stipulation over the attorney for the child's objection, and the attorney, on behalf of the child, took an appeal from the resulting order. While the Appellate Division, Fourth Department, ruled that the attorney for the child could not unilaterally scuttle a proposed settlement by withholding consent, the Court entertained the appeal that was taken by the attorney on the child's behalf, and considered the arguments advanced by that attorney in opposition to the settlement.

We recognize that in Matter of Lawrence v. Lawrence , 151 A.D.3d 1879, 54 N.Y.S.3d 358 and Matter of Kessler v. Fancher , 112 A.D.3d 1323, 978 N.Y.S.2d 501, the Appellate Division, Fourth Department, dismissed appeals taken by the attorney for the child from orders dismissing custody modification petitions. In those cases, the parent whose petition was dismissed did not appeal. The Court reasoned that children could not compel their parents to litigate positions that the parents had elected to abandon. While we do not necessarily agree with the stated rationale, we do agree that it may be inappropriate to entertain litigation by a child for a change in custody where the parent to whom the custody of the child would be transferred is unwilling to accept the transfer. Likewise, it may be inappropriate to entertain litigation by a child to prevent a change in custody where the parent who has had custody is no longer opposed to the change. The present case does not present such a concern since the father, while not having filed and perfected his own appeal, has submitted a brief in which he urges reversal of the order from which the child has appealed. Further, since enforcement of the order has been stayed pending determination of this appeal, the father remains the custodial parent. Hence, this is not a circumstance where the child is attempting to compel a custody award in favor of an unwilling parent.

We thus conclude that the attorney for the child has authority to take an appeal on behalf of the child from the custody determination made by the Family Court.

The Child Is Aggrieved by the Order Appealed From

The mother contends that the child is not...