In civil and child protective cases, the due process right to be present at every stage of a trial, and to particularly have "face-to-face confrontation" is not an absolute. Matter of Justin CC., 77 AD3d 207 at 210 (3d Dept. 2010)(citing Matter of Lindsey BB., 70 AD3d 1205, 1207 (3d. Dept. 2010)); Matter of Donna K., 132 AD2d 87 (4th Dept. 1987); Matter of Robert U., 283 AD2d 689, 690 (3d Dept. 1998); Matter of Kristina R., 21 AD3d 560 (2d Dept. 2005); Matter of Raymond Dean L., 109 AD2d 87 (4th Dept. 1985). In Family Court matters, it is well established that a court has broad discretion to exercise its statutory responsibility to protect a child, including the imposition of testimonial safeguards such as exclusion of a respondent during a child's testimony.
Matter of Justin CC. , 77 AD3d 207 at 210 (3d Dept. 2010) (citingMatter of Lindsey BB. , 70 AD3d 1205, 1207 (3d. Dept. 2010) ); Matter of Donna K. , 132 AD2d 87 (4th Dept. 1987); Matter of Robert U. , 283 AD2d 689, 690 (3d Dept. 1998) ; Matter of Kristina R. , 21 AD3d 560 (2d Dept. 2005) ; Matter of Raymond Dean L. , 109 AD2d 87 (4th Dept. 1985).In Family Court matters, it is well established that a court has broad discretion to exercise its statutory responsibility to protect a child, including the imposition of testimonial safeguards such as exclusion of a respondent during a child's testimony.
); In re Robert "U", 283 A.D.2d 689, 690, 724 N.Y.S.2d 527, 529 (2001) ("It is now well settled that a litigant does not have an absolute right to be present at all stages of a civil proceeding[.]"); Nussbaum, 162 Misc.2d at 525, 618 N.Y.S.2d at 169 ("The defendant's right to be present at a civil trial is not absolute."); Matter of Donna K., 132 A.D.2d 1004, 1004, 518 N.Y.S.2d 289, 290 (N.Y.A.D.1987) ("While every litigant has a fundamental right, guaranteed by the due process clause of both the Federal and State Constitutions, to be present at every stage of the trial . . . this right is not absolute in civil actions[.]"); Air Products Chemicals, Inc. v. Johnson, 296 Pa.Super. 405, 442 A.2d 1114, 1128 (1982) ("While we recognize that the right of a litigant to be present at the time his case is heard is a cherished right . . . we also are aware that the right is not absolute."); Casson v. Horton, 226 Md. 575, 174 A.2d 581, 582 (1961) (holding that a civil litigant "had no absolute right to be present.").
In short, if unfit to assist with trial conduct, a civil litigant, when excluded from the proceedings, suffers no legally cognizable detriment.I would so hold today. Maloney v. Shoparama Inv. Associates, 144 A.D.2d 112, 534 N.Y.S.2d 451, 452 (1988); Matter of Donna K., 132 A.D.2d 1004, 518 N.Y.S.2d 289, 290 (1987). The question of a party's right to be present in the courtroom during a civil trial was not dispositive in Clark v. Continental Tank Co., Okla., 744 P.2d 949, 953 (1987).
The Family Court must balance the due process rights of an article 10 respondent with the mental and emotional well being of the child. The Family Court properly balanced the respective interests of the parties and, based upon the record, reasonably concluded that the child Y.-L.R. would suffer emotional trauma if compelled to testify in front of the appellant ( see Matter of Lynelle W., 177 AD2d 1008; Matter of Donna K., 132 AD2d 1004). Because the appellant's attorney was present during the child's testimony and cross-examined her on the appellant's behalf, neither the appellant's due process right nor his Sixth Amendment right of confrontation was violated by his exclusion from the courtroom during the child's testimony ( see Matter of Sylvia J., 23 AD3d 560; Matter of Heather S., 19 AD3d 606, 609; Matter of Christa H., supra; Matter of Randy A., supra).
Respondent's counsel further asserted that, without such assistance from his client, there was a greater risk that in cross-examining the witness he might inadvertently elicit additional unfavorable information. It is now well settled that a litigant does not have an absolute right to be present at all stages of a civil proceeding, such as a Family Court Act article 10 proceeding (see, Matter of Christa H. [Louis K.], 267 A.D.2d 586; Matter of Donna K., 132 A.D.2d 1004; see generally,Matter of Christina F. [Gary F.], 74 N.Y.2d 532). Notably, however, inMatter of Christina F. (Gary F.) (supra), while counsel were present, the parents were excluded by agreement of the parties during the examination of the five-year-old child. Moreover, while counsel were present in bothMatter of Donna K. (supra) and Matter of Christa H. (Louis K.) (supra), both opinions refer to the trial court "balancing" the due process right of the respondents against the mental and emotional well-being of the child witnesses.
4 [Fam Ct Ulster County]). For instance, in Matter of Donna K. ( 132 AD2d 1004 [3rd Dept 1987]), the Court concluded that a balancing of the respective interests of the parties and the child justified the Family Court's exercise of its responsibility to protect the 16-year-old child by excluding respondent while the child testified where respondent's counsel was permitted to be present while the child testified and was given the opportunity to cross-examine her. Similarly, in Matter of S.K., M.K. and C.K., NYLJ, March 20, 1989, p. 28, col. 4 (Fam Ct, Westchester County), the Family Court permitted the child to testify outside the presence of her parents, after a preliminary hearing at which a psychologist, a qualified expert in child abuse, testified to the special, specific emotional harm likely to befall the 17-year-old if forced to confront the respondents.