Opinion
May 4, 2000.
Order, Family Court, New York County (Judith Reichler, Referee), entered on or about May 16, 1999, which denied respondent-appellant's motion to remove the Society for the Prevention of Cruelty to Children ("SPCC") as guardian ad litem for her children in a visitation proceeding brought by their father, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, respondent-appellant's motion granted, and the matter remanded for the appointment of a law guardian.
Ann Marie Scalia, for Guardian Ad Litem.
Alexander P. Kelly, IV, for Respondent-Appellant.
WILLIAMS, J.P., WALLACH, SAXE, BUCKLEY, JJ.
Family Court improvidently exercised its discretion in denying appellant's motion to remove SPCC as guardian ad litem and to appoint a law guardian. The record shows that the older child, an unquestionably bright and mature 15-year old, has repeatedly expressed her opposition to visitation and her displeaure with the representation of the SPCC, which she believes is biased towards her father, and that the father has a history of committing violent acts against the mother in the children's presence and is a convicted felon. Furthermore, the SPCC itself has performed and described its role as being a neutral, rather than the children's advocate, and there is confusion in the record as to which role it was intended to play. Accordingly, the motion should have been granted so that the children's interests were protected and their wishes adequately expressed in court (see, Matter of Elianne M., 196 A.D.2d 439, 440, lv dismissed 81 N.Y.2d 1067; Family Court Act §§ 241 Fam. Ct. Act, 249[a]; see also, Matter of Rebecca B., 227 A.D.2d 315;Matter of Scott. L. v. Bruce N., 134 Misc.2d 240).
THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.