McDermott v. Bale

• Decision Date: 27 April 2012
• Citation: 943 N.Y.S.2d 708,94 A.D.3d 1542,2012 N.Y. Slip Op. 03327
• Parties: In the Matter of Amanda J. McDERMOTT, Petitioner–Respondent–Respondent, v. Andrew John BALE, Respondent–Petitioner–Respondent.Sanford A. Church, Esq., Attorney for the Children, Appellant.
• Court: New York Supreme Court — Appellate Division

2012 N.Y. Slip Op. 03327
94 A.D.3d 1542
943 N.Y.S.2d 708

In the Matter of Amanda J. McDERMOTT, Petitioner–Respondent–Respondent,
v.
Andrew John BALE, Respondent–Petitioner–Respondent.Sanford A. Church, Esq., Attorney for the Children, Appellant.

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

April 27, 2012.

[943 N.Y.S.2d 708]

Sanford A. Church, Attorney for the Children, Albion, Appellant Pro Se.

[943 N.Y.S.2d 709]

Muscato, Dimillo & Vona, L.L.P., Lockport (P. Andrew Vona of Counsel), for Petitioner–Respondent–Respondent.

James D. Bell, Brockport, for Respondent–Petitioner–Respondent.

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

[94 A.D.3d 1543] In this custody proceeding pursuant to Family Court Act article 6, the Attorney for the Children (AFC) appeals from an order granting the parties joint custody of their two children, with primary physical residence to petitioner-respondent mother and liberal visitation to respondent-petitioner father. The order incorporated the terms of a written stipulation executed by the parties on the eve of trial. The AFC refused to join in the stipulation, but Family Court approved the stipulation over the AFC's objection. We reject the AFC's contention that the court erred in approving the stipulation. Although we agree with the AFC that he “ ‘must be afforded the same opportunity as any other party to fully participate in [the] proceeding ’ ” ( Matter of White v. White, 267 A.D.2d 888, 890, 700 N.Y.S.2d 537), and that the court may not “relegate the [AFC] to a meaningless role” ( Matter of Figueroa v. Lopez, 48 A.D.3d 906, 907, 851 N.Y.S.2d 689), the children represented by the AFC are not permitted to “veto” a proposed settlement reached by their parents and thereby force a trial. The record reflects that, unlike in Matter of Figueroa, upon which the AFC relies, the court here gave the AFC a full and fair opportunity to be heard, and the AFC stated in detail all of the reasons that he opposed the stipulation. Indeed, the court gave credence to many of the comments made by the AFC, as did the attorneys for the parents, both of whom agreed to modify the stipulation to address several of the AFC's concerns.

We cannot agree with the AFC that children in custody cases should be given full-party status such that their consent is necessary to effectuate a settlement. The purpose of an attorney for the children is “to help protect their interests and to help them express...