Corey O. v. Angela P.
| Decision Date | 24 March 2022 |
| Docket Number | 531849 |
| Parties | In the Matter of COREY O., Petitioner, v. ANGELA P., Appellant. (Proceeding No. 1.) In the Matter of Corey O., Petitioner, v. Angela P., Appellant. (Proceeding No. 2.) (And Three Other Related Proceedings.) |
| Court | New York Supreme Court — Appellate Division |
Lisa K. Miller, McGraw, for appellant.
Peter P. Charnetsky, Vestal, attorney for the child.
Before: Garry, P.J., Clark, Aarons and Colangelo, JJ.; Lynch, J., vouched in.
Aarons, J. Appeal from an order of the Family Court of Broome County (Connerton, J.), entered May 18, 2020, which, among other things, (1) granted petitioner's application, in proceeding No. 1 pursuant to Family Ct Act article 6, for custody of the parties’ child, and (2) granted petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of a son (born in 2016) and daughter (born in 2018). Pursuant to an October 2018 order, the parents had joint legal custody of the son with the mother having primary physical custody and the father having parenting time. Although no custody order was issued with respect to the daughter, she was residing with the mother. The parties thereafter commenced various proceedings seeking, among other things, modification of the October 2018 order and an initial custody order relative to the daughter. Following a fact-finding hearing, Family Court awarded the parties joint legal custody of the children with the father having primary physical custody and the mother having parenting time. The mother appeals.
In proceeding No. 2, the father, as the party seeking modification of the October 2018 order, was required to demonstrate a change in circumstances since the entry of such order so as to trigger a best interests analysis (see Matter of Derek KK. v. Jennifer KK., 196 A.D.3d 765, 766, 151 N.Y.S.3d 491 [2021] ; Matter of Janeen MM. v. Jean–Philippe NN., 183 A.D.3d 1029, 1030, 123 N.Y.S.3d 746 [2020], lv dismissed 35 N.Y.3d 1079, 130 N.Y.S.3d 425, 154 N.E.3d 11 [2020] ).1 The record reflects that the mother's living arrangement was unstable and that the second-floor loft area of her current home was only partially constructed. The record further reflects that the mother dropped the children off with the father in December 2019 and, since that time, the children have been residing with him. The mother also testified that she had not seen the children since December 2019. The record also discloses that the parties’ communication has become somewhat strained. In view of the foregoing, the requisite change in circumstances existed (see Matter of Romero v. Guzman, 158 A.D.3d 997, 999, 73 N.Y.S.3d 255 [2018], lv denied 31 N.Y.3d 908, 2018 WL 2728161 [2018] ; Matter of Gasparro v. Edwards, 85 A.D.3d 1222, 1222–1223, 925 N.Y.S.2d 206 [2011] ; Matter of Hetherton v. Ogden, 79 A.D.3d 1172, 1173–1174, 912 N.Y.S.2d 163 [2010] ).
As to the best interests of the children, although the parties have difficulty communicating, the record discloses that "their relationship is not so acrimonious that they are incapable of putting aside their differences" ( Matter of Blanchard v. Blanchard, 304 A.D.2d 1048, 1049, 758 N.Y.S.2d 206 [2003] [internal quotation marks and citations omitted]). Indeed, as Family Court found, the parties have largely worked together to establish a means of communicating for the benefit of the children. Furthermore, the court found, and the record confirms, that the father had more stable housing than the mother, that there was room for the children and that the father had a plan to provide care for them. Although the father was not employed, he received financial support from his family and fiance´e. Deferring to the court's findings, its decision to award the father primary physical custody of the children will not be disturbed (see Matter of Jennifer VV. v. Lawrence WW., 186 A.D.3d 946, 949, 130 N.Y.S.3d 121 [2020] ; Matter of Gasparro v. Edwards, 85 A.D.3d at 1224, 925 N.Y.S.2d 206 ).
Finally, the mother notes that the attorney for the children (hereinafter AFC) was previously a judge who, in 2014, decided a custody case involving her. A former judge is automatically prohibited, as a matter of law, from acting as an attorney "in any action, claim, matter, motion or proceeding, which has been before him [or her] in his [or her] official character" ( Judiciary Law § 17 ; see Matter of Czajka v. Koweek, 100 A.D.3d 1136, 1139, 953 N.Y.S.2d 394 [2012], lv denied 20 N.Y.3d 857, 2013 WL 149689 [2013] ). The pertinent inquiry is whether the instant proceedings had been before the AFC when he was a Family Court judge such that automatic disqualification of the AFC is mandated. In our view, they were not.
Various factual circumstances exist where disqualification of an attorney under Judiciary Law § 17 has been found. For instance, an attorney could not represent a petitioner with respect to that petitioner's claims against a respondent pertaining to an estate and trust where the attorney was previously the Surrogate who had presided over the probate proceedings of that same estate and issued letters testamentary and letters of trusteeship to that same respondent ( Matter of Gordon, 192 A.D.3d 1206, 1207, 145 N.Y.S.3d 141 [2021] ). Also, a former judge who had presided over various stages of a defendant's criminal action was later disqualified from either prosecuting (see e.g. Matter of Czajka v. Koweek, 100 A.D.3d at 1139, 953 N.Y.S.2d 394 ; People v. Oakley, 104 A.D.3d 1059, 1060, 960 N.Y.S.2d 759 [2013] ) or defending (see e.g. People v. Miller, 190 A.D.3d 1029, 1031, 138 N.Y.S.3d 715 [2021] ; People v. Sumter, 169 A.D.3d 1275, 1276, 92 N.Y.S.3d 924 [2019] ) that same defendant in other aspects of that same action.
Meanwhile, a former judge had presided over a defendant's prior proceedings involving a particular crime and later sought to represent that same defendant in a criminal action where the subject crime of that criminal action occurred after the judge retired from judicial office ( People v. Burks, 172 A.D.3d 1640, 1641–1642, 99 N.Y.S.3d 790 [2019], lv denied 33 N.Y.3d 1102, 106 N.Y.S.3d 665, 130 N.E.3d 1275 [2019] ). In that circumstance, Judiciary Law § 17 did not operate to disqualify the former judge from representing the defendant in the later criminal action ( id. at 1642, 99 N.Y.S.3d 790 ).
Here, the custody case noted by the mother neither involved the subject children nor the subject children's father.2 Rather, it was an entirely separate proceeding involving different children and a different father. Furthermore, the mother does not allege any factual ties between these underlying proceedings and the prior custody case (see id. ). Indeed, the only common tie between them is that the mother was a litigant. More to the point, only the mother, and not her present custody claim over the subject children, had been before the AFC during his tenure as a judge.
Although not explicitly clear from the record, the mother's fitness as the custodial parent presumably was an issue presented in her prior custody case. It is also an issue present here. Equating a discrete issue with a "matter" provided in Judiciary Law § 17, however, impermissibly stretches the meaning of "matter" such that it does not comport with "action, claim, ... motion or proceeding" – the other terms in Judiciary Law § 17 (see McKinney's Cons Laws of NY, Book 1, Statutes § 239[a]). Moreover, in view of the jurisdiction of Family Court and the particular cases such court hears, a party's fitness as a custodial parent frequently arises as an issue whether directly or indirectly. By giving an expansive view to "matter," the AFC, a former Family Court judge who had presided over countless proceedings in the past, would be disqualified from representing any party in any future case where another party in such case was previously before the AFC in one of those past proceedings – a result that would occur without regard to the nature of either the past proceeding or future case.
Based on the circumstances of this case, neither a new hearing nor automatic disqualification of the AFC under Judiciary Law § 17 is required . Furthermore, given that the 2014 order provides the necessary and pertinent information to analyze the Judiciary Law § 17 issue, remittal to develop the AFC's prior knowledge about the mother, as the dissent suggests, is unwarranted. To the extent that the mother believed that the AFC had any certain knowledge from the prior custody case that could have prejudiced her in the underlying proceedings, she was free to, but did not, move to disqualify the AFC from his representation. Alternatively, nothing precluded the AFC from exercising his discretion to recuse himself from representing the subject children.
The attorney for the children (hereinafter AFC) was formerly a judge in the Family Court of Broome County and, in his judicial capacity, presided over at least one custody matter involving respondent (hereinafter the mother). We find the AFC's multiple roles when it comes to this family to be of concern, particularly in light of the ever-present need to safeguard the integrity of the Judiciary from even the appearance of impropriety (see Matter of City of Rochester, 208 N.Y. 188, 192...
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John II. v. Kristen JJ.
...dismissed 50 N.Y.2d 1059, 50 N.Y.2d 1059 [1980] ; cf. Matter of Gordon, 192 A.D.3d at 1207 ; compare Matter of Corey O. v. Angela P., 203 A.D.3d 1450, 1453, 165 N.Y.S.3d 162 [3d Dept. 2022], appeal dismissed 38 N.Y.3d 1050, 171 N.Y.S.3d 38, 190 N.E.3d 1170 [2022] ).3 Accordingly, the order ......