Opinion
V-00240-04/04B.
Decided December 13, 2004.
Janet Schwarzenegger, South Cairo, New York, Law Guardian-Petitioner; Friedman and Molinsek, P.C., Delmar, New York, Michael P. Friedman, Esq. for Respondent.
In this custody proceeding, the law guardian for the three children has filed a petition for modification of a decision and order of this Court. Counsel for the father moves to dismiss on the grounds that petitioner has failed to join a necessary party, and that the petition fails to state a cause of action.
The Court holds that the mother is a necessary party and should be joined. Even though petitioner states that her allegations involve only conduct of the respondent father, and the relief she seeks is directed toward the father alone, in fact any change in custody or visitation with respect to the father necessarily would effect a complementary change in the rights and duties of the mother, who consequently has a right to be heard on the petition.
Respondent contends the petition should be dismissed because the petitioner has no personal knowledge of the facts alleged. The motion to dismiss is denied. The cases cited by respondent are not directly on point. A law guardian has standing to bring a petition on behalf of the children ( see, In re Rebecca B., 227 AD2d 315), and there is precedent for a law guardian filing a petition on behalf of the children alleging violation of visitation ( Wylie v. Fountain, 304 AD2d 872 [3rd Dept 2003]) or to modify its terms ( Iadicicco v. Iadicicco, 270 AD2d 721, 722 [3rd Dept 2000]; Bowers v. Bowers, 266 AD2d 741 [3rd Dept 1999]). Although the petition states that the allegations therein are made "upon information and belief", the law guardian's affidavit in response to the motion states that the allegations of the petition are based in part on information obtained by her "directly" from the children. If the children were competent to petition in their own behalf, these allegations would be on personal knowledge, not on information and belief. For purposes of pleading, therefore, they are deemed the children's allegations.
Petitioner is directed to join Virginia D. Smith, the mother of the children, as a party respondent. Respondent's motion to dismiss the petition is denied. A hearing date shall be fixed after all necessary parties are before the Court. This is the Decision and Order of the Court.