Silverman v. Silverman, 2018-14203

• Decision Date: 29 July 2020
• Docket Number: 2018-14203,Index No. 2398/14
• Citation: 186 A.D.3d 123,129 N.Y.S.3d 86
• Parties: Robert SILVERMAN, Respondent, v. Twila SILVERMAN, Appellant.
• Court: New York Supreme Court — Appellate Division

186 A.D.3d 123
129 N.Y.S.3d 86

Robert SILVERMAN, Respondent,
v.
Twila SILVERMAN, Appellant.

2018-14203
Index No. 2398/14

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

Argued—October 22, 2019
July 29, 2020

Law Offices of Eyal Talassazan, P.C., Garden City, NY, for appellant.

Tabat, Cohen, Blum & Yovino, P.C., Hauppauge, N.Y. (Robert A. Cohen and Michael R. Gionesi of counsel), for respondent.

Paraskevi Zarkadas, Centereach, NY, attorney for the children.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, SHERI S. ROMAN, LINDA CHRISTOPHER, JJ.

OPINION & ORDER

CHRISTOPHER, J.

129 N.Y.S.3d 87

186 A.D.3d 124

This appeal raises the primary issue of the role of an attorney for the child (hereinafter AFC) in representing her or his clients in a contested custody proceeding. The defendant in this action for a divorce and ancillary relief appeals from so much of an amended order of the Supreme Court, Suffolk County, dated September 13, 2018, as, after a hearing, granted that branch of the plaintiff's motion which was to modify the parties' so-ordered stipulation of settlement so as to award him residential custody of the parties' children.

On this appeal, we agree with the defendant that the AFC improperly substituted judgment and took a position that was contrary to the wishes of her clients, the parties' children, to such a degree that the amended order should be reversed insofar as appealed from, and the matter remitted to the Supreme Court, Suffolk County, for the appointment of a new AFC, and a de novo hearing and new determination thereafter of that branch of the plaintiff's motion which was to modify the parties' so-ordered stipulation of settlement so as to award him residential custody of the parties' children.

186 A.D.3d 125

Factual and Procedural Background

The parties were married in 1995 and have two children, born in September 2004 and November 2006. The plaintiff commenced this divorce action in 2014. The parties entered into a so-ordered stipulation of settlement dated October 17, 2016 (hereinafter the stipulation), whereby they agreed to joint legal custody of the children, with residential custody to the defendant and parental access to the plaintiff, which included therapeutic parental access in addition to his scheduled parental access. In April 2017, prior to the entry of a judgment of divorce, the plaintiff moved, inter alia, to modify the stipulation so as to award him residential custody of the children.

While the plaintiff's motion was pending, the defendant filed a family offense petition dated November 21, 2017, in the Family Court, alleging that the plaintiff strangled the youngest child. The Family Court issued a temporary order of protection against the plaintiff, which, inter alia, directed him to stay away from the children. The plaintiff successfully moved to transfer the family offense proceeding to the Supreme Court. After an in camera interview with the children, the Supreme Court dismissed the family offense petition, vacated the temporary order of protection, and directed overnight parental access with the plaintiff, to commence after several therapeutic sessions with a psychologist, Robert Goldman. Thereafter, the Supreme Court held a five-day hearing in May 2018 regarding, inter alia, that branch of the plaintiff's motion which was to modify the stipulation.

After the hearing, by amended order dated September 13, 2018, the Supreme Court, inter alia, granted that branch of the plaintiff's motion which was to modify the stipulation so as to award him residential custody of the children.

Analysis

On appeal, the defendant contends, inter alia, that the AFC improperly substituted

129 N.Y.S.3d 88

judgment and took a position contrary to the wishes of her clients. We agree.

An AFC is required to "zealously advocate the child's position" ( 22 NYCRR 7.2 [d]; see Matter of Young v. Young , 161 A.D.3d 1182, 1182, 74 N.Y.S.3d 499 ). In order to determine the child's wishes, the AFC must "consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances" ( 22 NYCRR 7.2 [d][1] ). The rules further state that

186 A.D.3d 126

" ‘the [AFC] should be directed by the wishes of the child, even if the [AFC] believes that what the child wants is not in the child's best interests’ and that the [AFC] ‘should explain fully the options available to the child, and may recommend to the child a course of action that in the [AFC]'s view would best promote the child's interests’ " ( Matter of Mark T. v. Joyanna U. , 64 A.D.3d 1092, 1093–1094, 882 N.Y.S.2d 773, quoting 22 NYCRR 7.2 [d][2] ).

An AFC would be justified in substituting judgment and advocating a position that is contrary to the child's wishes only if the AFC is "convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent serious harm to the child" ( 22 NYCRR 7.2 [d][3]; see Matter of Brian S. [Tanya S.] , 141 A.D.3d 1145, 1147, 34 N.Y.S.3d 851 ). "In such situations the attorney must still ‘inform the court of the child's articulated wishes if the child wants the attorney to do so’ " ( Matter of Mark T. v. Joyanna U. , 64 A.D.3d at 1094, 882 N.Y.S.2d 773, quoting 22 NYCRR 7.2 [d][3] ).

As retired Justice Sondra Miller wrote in a recent article, entitled "The Voice of the Child: Critical and Often Compelling," "Significant decisional precedent (trial and appellate) before and after the Matrimonial Commission Report reflected acceptance of [the] role of the attorney for the child as representing the child's wishes, not the opinion of the child's attorney as to his [or her] best interests" (Sondra Miller, The Voice of the Child: Critical and Often Compelling , NYLJ [online], Sept. 12, 2019).

Recently, this Court reinforced the role of the AFC in an opinion written by Presiding Justice Scheinkman wherein the mother contested the AFC's standing...