Opinion
12-20-2023
W.N., Plaintiff, v. M.N., Defendant.
Law Office of Jessica R. Meigher, PLLC Attorneys for Defendant By: Jessica R. Meigher, Esq. Copps DiPaola Silverman, PLLC Attorneys for the Children By: Kayla Leder, Esq. Rhoades, Cunningham & McFadden, PLLC Attorneys for Plaintiff By: John R. McFadden, Esq.
Unpublished Opinion
Law Office of Jessica R. Meigher, PLLC Attorneys for Defendant By: Jessica R. Meigher, Esq.
Copps DiPaola Silverman, PLLC Attorneys for the Children By: Kayla Leder, Esq.
Rhoades, Cunningham & McFadden, PLLC Attorneys for Plaintiff By: John R. McFadden, Esq.
DAVID A. WEINSTEIN, J.
This matter, a consolidated divorce and family offense proceeding, is scheduled for trial on January 29, 2023. By order dated March 10, 2022, Kayla Leder of Copps DiPaola Silverman PLLC was assigned as Law Guardian/Attorney for the Children ("AFC") to represent the parties' three minor children: A. (DOB -/-/2012), B. (DOB -/-/2016) and C. (DOB -/-/2019). Defendant MN now moves for appointment of a new attorney for the child, and other relief which is not before this Court, as explained below. Ms. Leder and plaintiff WN have filed papers in opposition. WN also cross-moves for an order granting him $1,750 in attorneys' fees for having to respond to the motions.
Ms. Leder had previously been appointed attorney for the children in the Family Court proceeding, first on July 31, 2020 when defendant filed a Family Offense petition against plaintiff, and then after it was withdrawn in May 2021, when the parties filed cross Family Offense and Custody petitioners (see NYSCEF No 24, ¶¶ 24-25), My understanding from Family Court is that there were numerous other orders subsequently re-appointing Ms. Leder as AFC in that forum.
Before addressing the application, a brief word about the procedural posture is in order. This motion was originally filed in Family Court on September 15, 2023, seeking as additional relief a "No Illegal Contact Order of Protection" in favor of the parties' three children requiring that WN and his girlfriend "refrain from any adult discussions, disparaging MN, engaging in arguments with MN and/or any supervisors, or engaging in domestic violence in the presence of the children" (Notice of Motion, September 15, 2023 at 4). At that point, the consolidation motion had already been briefed, but the ruling granting that motion was not issued until September 21, 2023.
There has been no subsequent order consolidating this more recent application for an order of protection with the divorce proceedings. As a result, while the disqualification motion is properly before me, defendant's motion for an order of protection is still pending in Family Court. And although plaintiff's cross-motion is technically before me as it regards the disqualification motion, it primarily concerns the application for an Order of Protection, and cannot really be decided outside the context of that motion.
There is one more wrinkle: A motion like this could be decided either by the IAS judge or the trial judge. Following consultation with Acting Justice Rivera - who was the IAS judge for this matter in his capacity as an Acting Justice of the Supreme Court - I will be addressing this motion.
With that said, I turn to the background of the custody dispute at the heart of this matter. Custody was initially addressed in a Final Order Directing Custody and Parenting Time dated January 14, 2022 (the "Custody Order"), entered in Family Court on the parties' agreement. The Custody Order provided that the Ns would share joint legal custody, and MN would have primary physical custody, with defendant having scheduled visitation time.
On December 16, 2022, plaintiff moved by Order to Show Cause ("OTSC") for an Order granting him physical custody, and limiting defendant's parenting time to supervised visitation. In support of the application, plaintiff submitted his own affidavit in which he described two incidents he said he had learned about from his daughter A.: the first was on December 7, 2022, when after an argument MN allegedly "pushed A. causing her to trip over the dog," and the second on the same night where after a struggle, MN was said to have "pushed [A.] hard, causing her to fall to the ground backwards and strike her head on the ground" (NYSCEF No 17, ¶ 3). WN also asserted that there had been a previous incident that September when MN had struck A (id. ¶ 4).
WN supported his motion with an affirmation from the AFC. Ms. Leder described conversations with A. and B. in which they are said to have discussed the alleged December 7 incidents in a manner essentially consistent with the version presented by WN, and raised other concerns regarding MN's parenting (NYSCEF No 24, ¶¶ 2, 11-16).
According to the affirmation, C. - who was then three years old - "was not yet of the age where she can clearly articulate what she has experienced and/or how she feels" (NYSCEF No 24, ¶ 18).
On December 19, 2022, the Court (per Hartman, J.) signed the OTSC, ordering as temporary relief pending a hearing that plaintiff be granted primary physical custody of the children, that defendant be limited to supervised visitation, and that an investigation pursuant to Family Court Act § 1034/255 be conducted. Defendant then filed papers in opposition to the application, including an affidavit from MN in which she attributed the December 7 incident to her efforts to stop A. from engaging in self-harm (NYSCEF No 27 ¶¶ 5-7). Further, she denied striking or shoving any of the children and asserted that plaintiff "has a long and documented history of manipulation and emotional abuse of the children" (id. ¶ 11).
No ruling has been made on the underlying relief sought by the OTSC, and thus custody has been governed by the OTSC's temporary provisions, with plaintiff having primary custody, and defendant restricted to supervised visitation - and with little contact between MN and A., who has generally foregone visitation with her mother.
In the present motion, defendant's counsel Jessica Meigher argues that there are conflicts between the interests of A. and the parties' two younger daughters that warrant appointment of separate counsel for the latter.
In a supporting affirmation, Ms. Meigher makes a number of assertions which essentially address the propriety of the current arrangement whereby WN has primary custody of the children, arguing that since WN took over primary physical custody the children's school attendance has been spotty, they have missed mental health appointments, and WN has been manipulating the children to alienate their affections (see generally Affirmation of Jessica Meigher, Esq., dated July 29, 2023 ["Meigher Aff"] ¶¶ 1-58).
Because the same application also seeks an Order of Protection against WN and his girlfriend, certain aspects of the petition may have been included as relevant to that aspect of the relief, and thus do not relate to the disqualification motion.
In specific regard to the application to disqualify counsel, Ms. Meigher argues as follows: A. has serious mental health issues and often disparages the mother in front of her sisters, and it is "unfair for [her] issues to be conflated with those of the younger sisters B. and C." (id. ¶ 71). Rather, the younger children are "entitled to have an attorney assigned who will represent their interests and advocate for their individual wishes" (id. ¶ 72). Thus, in light of A.'s specific issues - particularly her "deteriorating mental health and her differing interests" - a new and separate attorney must be appointed to represent B. and C. (id. ¶ 75).
MN echoes these concerns in her own affidavit, stating as follows:
"It is unfair for A.'s issues to be conflated with those of her younger sisters.... More concerning is that A.'s issues have become front and center and have subsumed the interests of her siblings who regularly have to hear from their 10 year old sister and their father and his girlfriend how horrible I am as a person and mother. Clearly, our younger daughters are entitled to have an attorney assigned who will represent their interests and advocate for their individual wishes" (Affidavit of MN in Support of Motion, July 24, 2003 ¶¶ 74-75).
Ms. Leder has filed an affirmation in opposition. She argues that most of the facts set forth in regard to the motion are irrelevant to the disqualification question (Affirmation of Kayla Leder, Esq., dated August 29, 2023 ["Leder Aff" ]¶ 11). As to the specific argument for disqualification, she asserts that the children in this case "do not have different positions" in regard to custody (id. ¶ 15), and that nothing in the motion papers indicates that the children have "divergent interests" (id. ¶ 16; see also id. ¶ 18 ["A. and B. do not have different positions"]). She states that she has met with her clients "separately - and privately - in several occasions throughout the years" and has "developed a relationship" with each of them (id. ¶ 17). Except for C., she says they have "clearly articulated their wishes" to her and "share the same position" (id.). She characterizes the allegation that A. has influenced her sisters (in particular B.) as "speculative," and says that B.'s expressed position is no different from A.'s, and is "based upon her own personal experiences" (id. ¶ 18).
Ms. Leder also argues that the differences between the children's actual parenting schedule (i.e., A. does not participate in her mother's parenting time while the younger two do) does not create a conflict, because the children do not wish to reside with different parents, and she can "advocate for their respective wishes without prejudicing either of their rights" (id. ¶ 19). In particular, she states that B. does not wish for additional parenting time, or want unsupervised parenting time (id.).
Leder states that A. is in "regular telephone contact" with her mother (Leder Aff ¶ 19).
In WN's opposition papers and cross-motion - which also addresses the motion for an order of protection - his counsel states that his firm was involved in the case for more than a year, and "Attorney Leder has consistently represented her clients in a zealous and appropriate fashion" (Attorney Affirmation of John McFadden. Esq., August 18, 2023 ¶ 11).
Defendant has made a reply submission in which she expounds on her arguments for disqualification at greater length. In a reply affirmation of counsel, Ms. Meigher argues that the AFC has "inappropriately co-opted the position of her oldest client A. and applied it across the board" (Reply Affirmation of Jessica Meigher, Esq., dated September 15, 2023 ¶ 10). Specifically, she states that A. wishes to have no contact with her mother and to have an order of protection against her, which is a position adverse to that of the other children (id. ¶¶ 10-11). The reply affirmation also includes numerous other complaints about the AFC's representation, including that (1) she has not appropriately addressed A.'s mental health issues, plaintiff's "alienating behavior and harassment," and the children's absences from school; (2) she has "ignored" certain incidents, including one in which hot sauce was allegedly poured in B.'s mouth; and (3) she has not adequately asked MN about her concerns (id. ¶¶ 13-19). A reply affidavit from MN makes similar assertions, including that the two younger children "enjoy visits" with her while A. desires "zero contact," and that the AFC has failed to speak with the supervisor of her visits with the children (see Reply Affidavit of MN, dated September 15, 2023 ¶¶ 24-25).
DISCUSSION
The role of an AFC is defined by 7 NYCRR § 7.2. Under that regulation, an AFC "must zealously advocate the child's position" (7 NYCRR § 7.2[c]). To ascertain that position, "the attorney for the child 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" (7 NYCRR § 7[c][1]). An AFC "is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on:... conflicts of interest...." (7 NYCRR § 7.2[b]). Under the governing ethical rules, a lawyer cannot represent a client "if a reasonable lawyer would conclude that... the representation will involve the lawyer in representing differing interests" (New York Rules of Professional Conduct, Rule 1.7).
In applying the above principles, courts have found that separate counsel must be appointed for children in a divorce action when they have "divergent interests with regard to where and with whom they preferred to live" (Matter of James I. (Jennifer I.), 128 A.D.3d 1285, 1286 [3d Dept 2015]; see also Gary D.B. v Elizabeth C.B., 281 A.D.2d 969, 971-972 [4th Dept 2001] [AFC's motion to withdraw from representing all children should have been granted "after the children began to express different preferences concerning the parent with whom they wished to live"]).
This does not mean, however, that every difference in how children wish to structure visitation or other arrangements between child and parent requires that each have different counsel. As one trial court summarized those decisions in which an AFC was found to be barred from representing multiple children due to a conflict, "the gravamen of those cases centers on the divergent views of where the children wanted to reside based upon each parent's fitness" (M.M.v K.M., 62 Misc.3d 487, 490 [Sup Ct, Nassau Cty 2018]). My own review has found this generally to be an accurate characterization of the law; the only other circumstance I can find where separate counsel was ordered occurred when the AFC took a position "at the outset of the proceeding, without making an appropriate inquiry" (Corigliano v Corigliano, 297 A.D.2d 328, 329 [2d Dept 2002]).
Defendant here has not shown that the children have different positions which necessitate separate AFCs. The primary evidence in this regard is that B. participates in supervised visitation while A. does not - but that does not mean that they have different views on the current arrangement, which allows for such visitation if they wish. The fact that children may have differing ideas about scheduling of visitation does not by itself create a conflict of interest (see M.M., 62 Misc.3d at 491 ["difference of opinion over scheduling does not create a conflict of interest for the AFC, [as she] can advocate for each child's separate view of the parenting schedule without prejudicing the rights of the other child"]). Further, while defendant argues that the AFC has "inappropriately co-opted the position of her oldest client" (Attorney Reply Aff ¶ 10), the record evidence on this motion does not demonstrate that the AFC is not representing the desires of her clients as they have been conveyed to her.
Much of the rest of defendant's argument is simply a critique of the particular manner in which the AFC has carried out her representation, i.e., that she has"not appropriately addressed the older child's mental health needs," failed to appropriately investigate the father's "abusive behavior", and has "not asked the Mother or her counsel for any information regarding the Mother's concerns" (see id. ¶¶ 13, 15). None of this demonstrates a conflict of interest. The AFC's role is to advocate for the children's position. Thus, "[i]f the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests" (22 NYCRR § 7.2[d][2]). As a result, it is not the AFC's role generally to investigate the actions of the parents or ensure that the parents' concerns have been met. Moreover, it is not appropriate for the Court to supervise the details of every investigatory or consultation decision made by a law guardian, or each claim by a parent that their child's view is other than what the AFC says. Such an approach would allow a party to seek the AFC's removal whenever he or she has advocated a position for the children that the party believes to be a incorrect or a misstatement of what the child "really" thinks. The ethical rules and case law provide for no such thing (see Donna Marie C. v Kuni C., 134 A.D.3d 430, 431 [1st Dept 2015] [fact that AFC "sometimes supported or opposed relief sought by a particular parent is not evidence of bias"; no basis for removal on ground of bias when there was no evidence that AFC "had a personal, unreasonable prejudgment of any of the issues affecting his clients which interfered with his representation of them"]; S.A. v S.K., 40 Misc.3d 1241[A] [Family Ct, Bx Cty Aug 26, 2013] ["a parent's objection to the [AFC] is not a basis to relieve the attorney"]). In the absence of evidence that the AFC has not properly consulted with her clients, or that there is an actual conflict, disqualification is not warranted.
There are two exceptions to this principle: where the child lacks the capacity for "knowing, voluntary and considered judgment, or when 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]). Defendant's papers do not show that the second exception has been met here. And while the AFC acknowledges that the first exception applies to C. (Leder Aff ¶ 17), that only authorizes the AFC to "substitute his or her own judgment for that of the child" (Mason v Mason, 103 A.D.3d 1207, 1208 [4th Dept 2013]; see also Augreanna VV v Nancy WW., 158 A.D.3d 1007. 1011 [4th Dept 2018] [because child lacked capacity to make considered judgment, AFC "properly substituted his judgment" for child]). While movant sets forth grounds on which she believes that judgment is incorrect, I cannot say that is the case before the trial which shall address such has been conducted. A motion to appoint a new AFC is not the forum for the Court to decide whether such substituted judgment is correct; to do so would turn the motion into a mini trial, in which the best interests standard I will be required to decide at the actual trial would be applied, without a full record, in the Court's review of the AFC's appointment. Since there is no ethical violation I can find in the AFC's decision in regard to the position taken for C., she is not disqualified on this basis.
In sum, there is no evidence that Ms. Leder has a conflict of interest in representing all three children in this case, or has otherwise neglected her responsibilities so as to require removal. As a result, defendant's motion must be denied (see Matter of Rosenberg v Rosenberg, 261 A.D.2d 623 624 [2d Dept 1999] [abuse of discretion for Court to appoint new law guardians for some of the children when "there is no evidence in the record that [the present law guardian] either had a conflict of interest or had failed to diligently represent the best interests of the children"]). I note in addition that given the length of Ms. Leder's representation in this case, the imminence of trial, and the disruption that would be caused by requiring that a new attorney get up to speed, such other factors as may be relevant to this decision also weigh against granting the application (see Smith v Anderson, 137 A.D.3d 1505, 1509 [3d Dept 2016] [AFC should not have been removed when she "had represented their interests for a number of years, was well acquainted with the parties' history, inquired of the children as to their wishes and reported the children's preferences to Family Court"]).
Accordingly, defendant's motion to appoint a new attorney for B. and C. is DENIED.
In light of the fact that only two paragraphs of plaintiff's opposition papers concerned this issue, and such opposition was not required in light of the AFC's own submission, the cross-motion for a fee award is DENIED WITHOUT PREJUDICE to plaintiff seeking such relief to the extent appropriate at such time as the motion for an order of protection is decided.
This constitutes the Decision & Order of the Court. This Decision & Order is being electronically filed with the Clerk's Office, with copies e-mailed to counsel for the parties. The signing and e-filing of this Decision and Order shall not constitute Notice of Entry, and counsel is not relieved from the applicable provisions of the CPLR respecting to filing and service of Notice of Entry.