Summary
upholding the Supreme Court's determination denying motion to remove the attorney for the child, as provident exercise of discretion
Summary of this case from C.C. v. D.D.Opinion
2018–05858 Index No. 8102/13
06-19-2019
John SAGARIA, Appellant, v. Cynthia SAGARIA, Respondent.
Meth Law Offices, P.C., Chester, N.Y. (Michael D. Meth of counsel), for appellant. Strauss & Kallus, PLLC, Goshen, N.Y. (Barbara J. Strauss of counsel), for respondent. Kelli M. O'Brien, Goshen, NY, attorney for the child.
Meth Law Offices, P.C., Chester, N.Y. (Michael D. Meth of counsel), for appellant.
Strauss & Kallus, PLLC, Goshen, N.Y. (Barbara J. Strauss of counsel), for respondent.
Kelli M. O'Brien, Goshen, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, RUTH C. BALKIN, JOSEPH J. MALTESE, JJ.
DECISION & ORDERIn an action for a divorce and ancillary relief, the plaintiff appeals from an order of the Supreme Court, Orange County (Maria S. Vazquez–Doles, J.), dated May 17, 2018. The order denied the plaintiff's motion, inter alia, to unseal the minutes of an in camera interview with the parties' child and to remove the attorney for the child.
ORDERED that the order is affirmed, with costs.
In aid of a determination on the issues of child custody or parental access, the court may conduct an interview with the subject child outside the presence of the parties and their counsel (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 271–272, 299 N.Y.S.2d 842, 247 N.E.2d 659 ). Such an interview must be conducted on the record but the transcript is sealed in order to protect the confidentiality of the interview (see Family Ct. Act § 664 ). While the trial court has the inherent authority to direct the unsealing of the transcript, in this case, we agree with the Supreme Court's determination to deny the plaintiff's request to unseal the transcript as he failed to give a sound reason for its disclosure (see Matter of Anderson v. Harris, 73 A.D.3d 456, 458, 900 N.Y.S.2d 269 ; see also Matter of Heasley v. Morse, 144 A.D.3d 1405, 1408, 42 N.Y.S.3d 377 ; Matter of Julie E. v. David E., 124 A.D.3d 934, 937–938, 1 N.Y.S.3d 431 ).The role of the attorney for the child is "to be an advocate for and represent the best interests of the child, not the parents" ( Matter of Brittany W., 25 A.D.3d 560, 560, 806 N.Y.S.2d 426 ; see Matter of Hanehan v. Hanehan, 8 A.D.3d 712, 714, 778 N.Y.S.2d 539 ). Absent a conflict of interest or failure to diligently represent the best interests of the child, the attorney for the child should not be removed (see Matter of King v. King, 266 A.D.2d 546, 547, 698 N.Y.S.2d 906 ).
Here, the plaintiff offered no evidence of any conflict of interest or bias on the part of the attorney for the child in favor of the defendant, nor did the plaintiff offer any evidence that the attorney for the child was neglecting her obligations to the child. Under these circumstances, the Supreme Court's determination denying that branch of the plaintiff's motion which was to remove the attorney for the child was a provident exercise of discretion (see Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 1149, 897 N.Y.S.2d 639 ; Matter of Brittany W., 25 A.D.3d at 560, 806 N.Y.S.2d 426 ; Matter of Hanehan v. Hanehan, 8 A.D.3d at 714, 778 N.Y.S.2d 539 ; Matter of King v. King, 266 A.D.2d at 547, 698 N.Y.S.2d 906 ; cf. Cervera v. Bressler, 50 A.D.3d 837, 840–841, 855 N.Y.S.2d 658 ).
The plaintiff's remaining contentions are without merit.
Accordingly, we agree with the Supreme Court's determination denying the plaintiff's motion.
Finally, we note that the litigation of custody and related matters in this case has been exceptionally protracted, and that a trial on the issue of custody has been underway for several months. We urge the Supreme Court to complete that trial as expeditiously as possible.
MASTRO, J.P., RIVERA, BALKIN and MALTESE, JJ., concur.