Supreme Court Brief

NEW YORK SUPREME COURT APPELLATE DIVISION - SECOND DEPARTMENT AD No. 2008-02010

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT _______________________________________________x AD No. 2008-02010

In the Matter of Dawn Delevan respondent, v Sean Delevan, appellant. ________________________________________________x

BRIEF FOR APPELLANT Janet Brown, Esq. Law Guardian 8931 161Street Suite 301 Jamaica, NY 11432-6102 Ms. Dawn Delevan 64-74 80th Street Middle Village, NY 11379 August 21, 2009 Queens County Family Court Docket Nos: V17750-01

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TABLE OF CONTENTS TABLE OF AUTHORITIES………………………………..……3-6 STATEMENT PURSUANT TO RULE 5531...................................7 PRELIMINARY STATEMENT ...................................................8-9 QUESTIONS PRESENTED .............................................................9 STATEMENT OF FACTS............................................................9-14 ARGUMENT................................................................................14-24 I.

It was error for the Court to terminate the Appellant’s unsupervised visitation without conducting a full evidentiary hearing.

II.

It was error for the Law Guardian to argue a position that was contrary to her clients when the subject children were not under an infirmity?

III.

It was error for the Family Court Referee to hear the Custody/visitation matter without the Appellant’s formal written consent and a written order of reference.

CONCLUSION............................................................................................24

CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR SECTION 670.10.3(F) …………………………………………………....25

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TABLE OF AUTHORITIES State Cases

Page

Biagi v. Biagi, 124 A.D.2d 770, 508 N.Y.S. 2d 488 (2nd Dept. 1986)……… …………………………………………………………..……14 In re Amber D.C., 53 A.D.3d 613, 862 N.Y.S.2d 103, 2008 (2nd Dept.2008)………………………………………………………………….14 Kresnicka v. Kresnicka, 48 A.D.2d 929, 369 N.Y.S. 2d 522 (2nd Dept. 1975)………………………………………………………………………..14 Matter of Erie County Dept. of Social Services, 127 A.D.2d 937, 513 N.Y.S.2d 56 (4th Dept. 1997)……………………………. ………………..14 Naughton-General v. Naughton, 247 A.D.2d 933, 662 N.Y.S. 2d 956 (4th Dept. 1997)…………………………………………………………………14 Youngblood v. Amrhein, 216 A.D.2d 475 628 N.Y.S. 2d 386 (2nd Dept. 1995)……………………………………………………………….……….15 Ciulla v. McGee, 255 A.D.2d 58,680 N.Y.S.2d870 (2nd Dept. 1998)………… ………………………………………………………..……15 Farsi v. Farhi, 64 A.D.2d 840,407 N.Y.S.2d 326(4th Dept. 1978)…………… …………………………………………………………..15 Hotze v. Hotze, 57 A.D.2d 85, 394 N.Y.S.2d 753 (4th Dept. 1977)…………

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……………………………………………………………15 In the Matter of Vann v. Vann, 187 A.D.2d 821, 589 N.Y.S.2d 715 (3rd Dept. 1992)…………………………………………………………………15 In the Matter of Melinda “A”., 278 A.D.2d 754, 717 N.Y.S.2d 776 (3rd Dept, 2000)…………………………………………………………………….….15 Buffin v. Mosley, 263 A.D.2d 962, 695 N.Y.S.2d 442 (4th Dept. 1999)……… ………………………………………………………………..15 In the Matter of Scotty C., 263 A.D.2d 962, 546 N.Y.S.2d 461 (4th Dept. 1999)………………………………………………………………………..16 Strempler v. Savell,287 A.D.2d 827, 731 N.Y.S.2d 530 (3rd Dept. 2001)…… ………………………………………………………………..…16 Campolongo v. Campolongo, 2 A.D. 3d 476, 768 N.Y.S.2d 498 (2nd Dept. 2003)………………………………………………………………………..17 Drummond v. Drummond, 291 A.D. 368, 2d 737 N.Y.S.2d 628 (2nd Dept. 2002)………………………………………………………………………..17 In the Matter of Glenn F. 117 A.D.2d 1013, 499 N.Y.S.2d 557(4th Dept. 1986)…………………………………………………………………….…18 Davis v. Davis, 269 A.D.2d 82, 711 N.Y.S.2d 663 (4th Dept. 2000)………… ……………………………………………………….……18

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In re Derick Shea D. ,22 A.D.3d 753, 804 N.Y.S.2d 389, (2 Dept., 2005)… ……………………………………………………………………..18 Mark T. v. Joyanna U.,WL 2252543 (3 Dept.,2009)………………….18-19 Schairer v.Schairer, 192 Misc.2d 155, 745N.Y.S. 2d 410 (N.Y.Sup 2002)… ………..……………………………………………………………21 Raymond v. Raymond, 174 Misc. 2d 158, 622 N.Y.S. 2d 1016 (N.Y. Fam. Ct. 1997)…………………………………………………………………....21 Neighborhood Supermarket Chain, Inc. v. Epic Sec. Corp., 162 Misc.2d 218, 616 N.Y.S. 2d 567 (N.Y. Civil Ct. 1994)…………………………………..21 Marks v. Prisant, 171 A.D.2d 665, 567 N.Y.S. 2d 146 (2nd Dept. 1991)…… …………………………………………………………………..22 People v. Gomberg, 38 NY2d 307, 379 N.Y.S.2d 769 (Court of Appeals 1975)…………………………………………………………………..……22 Glasser v. United States, 315 US 60, 76)…………………………………..22 Cinema 5 Ltd. v. Cinerama, inc., et. al, 528 F2d 1384 (2d Cir. 1976)……… …………………………………………………………….….22 In re Star , 245 A.D.2d 5, 280 N.Y.S.2d 752 (2nd Dept 1935)……………..23 First Data Merchant Services Corp. v. One Soloution Corp., 14 A.D.3d 534,789 N.Y.S.2d 198 (2nd Dept. 2005)……………………………………23 Fernald v. Vinci, 302 A.D.2d 534, 754 N.Y.S.2d 688 (2nd Dept. 2003)……… 5

………………………………………………………………23 IPro Biz- Enterprises, Inc. v. Kozan, 19 A.D. 3d 1115, 797 N.Y.S.2d 205 (4th Dept. 2005)………………………………………………………………....24 State Statutes Family Court Act Section 241………………………………………….17-18 Family Court Act Section 242…………………………………………..….17 N.Y. Const, Art.1 Section 6………………………………………………..17 CPLR Rule 4311…………………………………………………………...23 N.Y. Ct. Rules, Section 7.2 (d)………………………………………….…18

Federal Statutes U.S. Const 14th Amend……………………………………………..………17 Secondary Sources The New York State Bar Association Law Guardian representation in custody cases. STANDARD B-2………………………………………..…19 Cannon 7 of the Code of Professional Responsibility…………………..….20 DR 9-101 of the Code of Professional Responsibility……………………..21 New York Family Court Practice; Sobie p.786…………………………….18

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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT ____________________________________________x AD No. 2008-02010

In the Matter of Dawn Delevan respondent, v Sean Delevan, appellant. ____________________________________________x STATEMENT PURSUANT TO RULE 5531 1.

The docket number in the court below was V-17750-01.

2.

The full name of the original parties were Sean Delevan, petitioner,

and Dawn Delevan, respondent. 3.

This action was commenced in Family Court, Queens County.

4.

The action was commenced by the filing of a petition with the Clerk

of the Queens Court Kings County. 5.

The object of the underlying action is reversal of the Family Court

Order dated February 5, 2008, which granted the Appellant supervised visitation. 6.

This is an appeal from an order rendered on the 5th Day of February

2008, by Referee Francine Seiden. 7. This is an appeal on the original record. The appendix method is not being used.

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SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: SECOND DEPARTMENT ____________________________________________x AD No. 2008-02010

In the Matter of Dawn Delevan respondent, v Sean Delevan, appellant. ____________________________________________x i PRELIMINARY STATEMENT The appellant initially filed a petition for visitation. That petition was resolved with the appellant being granted unsupervised visitation. As a result of numerous violations by the respondent in regards to the appellant’s order of visitation the appellant filed a modification petition requesting that appellant be granted custody of the subject children. The subject child, Ryan is 10 years old and Mark is six years old. In regards to the modification petition the Court ordered forensics, which were performed by Dr. James Greiss. The Court conducted a preliminary hearing in regards to the appellant’s modification petition on June 14, 2007. At the hearing Dr James Greiss and Ruth Westmeyer (social worker), testified in regards to their findings. On June 19,2007, the Court terminated appellant’s unsupervised visitation with his sons and ordered 8

supervised visitation. The current matter is an appeal from Queens County, Family Court, (FRANCINE SEIDEN, F.C.R.) decision dated February 5, 2008, which continued the order for supervised visitation for the appellant. QUESTIONS PRESENTED I.

Was it error for the Court to terminate the Appellant’s unsupervised visitation without conducting a full evidentiary hearing?

II.

It was error for the Law Guardian to argue a position that was contrary to her clients when the subject children were not under an infirmity?

III.

Was it error for the Family Court Referee to hear the Custody/visitation matter without the Appellant’s formal written consent and a written order of reference?

STATEMENT OF FACTS

On July 10,2006, this matter was heard in Queens County Family Court before Judge Salvatore J. Modica. The Law Guardian informed the Court that the subject children want to see the appellant, they love him, miss him, do not fear him, and have not witnessed any domestic violence between the appellant and respondent (T.7-10-06 p.6). The Court found that the

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Respondent mother unilaterally stopped visitation between the appellant and subject children between March 2006 and June 2006 (T.7-10-06 p.8). The Court granted appellant unsupervised visitation from 9 am to 7pm every Saturday (7-10-06 p.14). On February 2, 2007 the parties appeared before Judge Salvatore J. Modica, and the Court ordered forensic evaluation of the parties (T.2-2-07 p.35). The proceeding was adjourned to May 15,2007, with a reference to the case being adjourned to Referee Francine Seiden. On April 4,2007 the matter was presided over by Referee Francine Seiden. The Court noted that this proceeding was transferred from Part 9 who had a history with this family (T.4-4-07 p.4). The Respondent Mother made an oral application on June 6, 2007, to suspend the Appellant’s unsupervised visitation (T.6-6-07 p. 14). The Law Guardian supported the Respondent’s application to suspend visitation and requested that the Court implements supervised visitation (T. 6-6-07 p. 33). The Law Guardian’s support of the Respondent’s application was despite the fact that the Law Guardian was informed by her clients that they wanted to live with their father, were afraid of their step-father, and were physically abused by their step-father. Ryan has contacted the Law Guardian and informed the Law Guardian that he was unhappy with residing with his

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mother the respondent and was concerned that he would not be able to visit with his father the appellant (T. 6-6-07 p. 33-36). On June 14, 2007 the Court conducted a hearing, which was limited to the issue of modifying the Appellant’s visitation from unsupervised to supervised (T.6-14-07 p.4). DR. JAMES GREISS The parties stipulated that Dr. Greiss was an expert in psychology and the forensic report was entered into evidence as Court’s Exhibit 1 (T.6-14-07 p.5). Dr. Greiss testified that the Appellant should not have unsupervised visitation with his sons Ryan and Mark because of the negative relationship that the children have with their mother (T.6-14-08 p.7). Dr. Greiss believes that the Appellant’s conduct in telling the children that the Appellant wants the children to live with him has a negative impact on the children’s relationship with their mother. The children view the Appellant in a positive light and have a lot of fun with the Appellant. The Appellant and his sons, Ryan and Mark have positive interaction. In contrast, the children view their mother in a negative light. It is evident that the Appellant loves his children and is concerned about their welfare (T.6-14-08 p.9,14,33,59). Ryan has informed Dr. Greiss that his mother freaks out and does not

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have the ability to handle things. Dr. Greiss is of the opinion that these statements are not age appropriate (T.6-14-08 p.9). Dr. Greiss also believes that Ryan is fabricating stories that portray his mother in a negative light because he wants to live with the Appellant. The children would be disappointed if they were not permitted to live with the Appellant (T.6-14-08 p.11,15). The subject child, Ryan is fixated on the Appellant and is afraid of losing him (T.6-14-08 p.15). It appears that the Appellant and Respondent are both coaching the children to view each other in a negative light. The subject child, Ryan age 10 curses at the respondent. Ryan calls the respondent a ‘bitch” or uses the word “fuck you” (T.6-14-08 p. 38-39). The Respondent mother has difficulty in controlling her anxiety and will tend to exaggerate as a result of her emotional status. Respondent becomes stressed and tends to distort the situation. Dr. Greiss was unable to accept Respondent’s statements as being truthful because there were some distortions in the respondent’s perception (T.6-14-08 p. 60-63). Dr. Greiss is concerned that if the Court does not terminate unsupervised contact between the Appellant and his children the children’s relationship with their mother may suffer irreparable harm (T.6-14-08 p.12). The purpose of suspending visitation between the Appellant and his children is to permit the Respondent mother to build a healthier relationship with her

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children (T.6-14-08 p.13).

RUTH WESTMEYER, SOCIAL WORKER Ruth Westmeyer is a social worker and is seeing the subject child, Ryan in therapy (T.6-14-08 p.112). Ms. Westmeyer also provides individual therapy for the Respondent and family therapy with Ryan and Mark (T.6-1408 p.120). Ryan started in therapy with Ms. Westmeyer in August 2006. The Respondent did not bring Ryan for therapy between September and December 2006, and then therapy was resumed (T.6-14-08 p.112). Ms. Westmeyer is concerned about the interaction that Ryan is having with his father the, Appellant. This is because Ryan’s conduct has deteriorated since the Appellant, was reintroduced into Ryan’s life (T.6-14-08 p.113-114). Ms. Westmeyer has not interviewed or met with the Appellant (T.6-14-08 p.120). The Appellant did call Ms. Westmeyer’s office and she returned his phone call (T.6-14-08 p.21). In August 2006, Ryan initially stated he wanted to live with his mother, the Respondent and in February 2007, Ryan’s position was that he wanted to reside with the Appellant, his father (T6-14-08 p. 118). On June 19, 2007, the Court suspended the Appellant’s unsupervised visitation with Ryan and Mark and ordered supervised

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therapeutic visitation. The initial six visits will be paid for pursuant to 722-C of the County Law (T.6-19-07 p. 10-12). _____________________________________________________________ 1. On March 24, 2009, the Family Court conducted a reconstruction hearing in regards to a proceeding that occurred on February 5,2007. The Court did not attempt to reconstruct the in-camera interview of the children, that was also conducted on February 5,2007.

ARGUMENT I.

It was error for the Court to terminate the Appellant’s unsupervised visitation without conducting a full evidentiary hearing.

As a general rule, it is error to resolve a visitation/custody dispute without conducting a full hearing Biagi v. Biagi, 124 A.D.2d 770, 508 N.Y.S. 2d 488 (2nd Dept. 1986), In re Amber D.C., 53 A.D.3d 613, 862 N.Y.S.2d 103, 2008 (2nd Dept.2008). "The issue of visitation, like that of custody, may not be determined on the basis of recriminatory and controverted affidavits, but only after a full and plenary hearing." Kresnicka v. Kresnicka, 48 A.D.2d 929, 369 N.Y.S. 2d 522 (2nd Dept. 1975), Matter of Erie County Dept. of Social Services, 127 A.D.2d 937, 513 N.Y.S.2d 56 (4th Dept. 1997). A determination regarding visitation and custody when there

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conflicting allegations, should be based on a full hearing Naughton-General v. Naughton, 247 A.D.2d 933, 662 N.Y.S. 2d 956 (4th Dept. 1997). "Family Court's fact-finding hearing, with only father and mother present, did not meet requirement of full inquiry into any potential deleterious effects, on son granting visits with non-custodial father, where neither expert testimony nor evaluation of possible impact were introduced." Youngblood v. Amrhein, 216 A.D.2d 475 628 N.Y.S. 2d 386 (2nd Dept. 1995), Ciulla v. McGee, 255 A.D.2d 58,680 N.Y.S.2d870 (2nd Dept. 1998). “Visitation will only be denied where there is substantial evidence that it would be detrimental to a child’s welfare.” There must be evidence that such visitation is detrimental to the child' s best interest Farsi v. Farhi, 64 A.D.2d 840,407 N.Y.S.2d 326(4th Dept. 1978), Hotze v. Hotze, 57 A.D.2d 85, 394 N.Y.S.2d 753 (4th Dept. 1977), In the Matter of Vann v. Vann, 187 A.D.2d 821, 589 N.Y.S.2d 715 (3rd Dept. 1992). The denial of visitation rights to a biological parent is a drastic remedy, and suspension of visitation rights by Family Court must be based on compelling reasons and substantial evidence that such visitation is adverse to the child's best interest. In the Matter of Melinda “A”., 278 A.D.2d 754, 717 N.Y.S.2d 776 (3rd Dept, 2000). In order to deny visitation between a biological parent and child there

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must be substantial evidence that the visitation would affect the psychological health of the child. Buffin v. Mosley, 263 A.D.2d 962, 695 N.Y.S.2d 442 (4th Dept. 1999). Expert testimony can be used to assist the court in determining whether parent/child bond has been irreparably damaged. In the Matter of Scotty C., 263 A.D.2d 962, 546 N.Y.S.2d 461 (4th Dept. 1999). Denying visitation to a natural parent is a drastic remedy and should only be done when there is a compelling reason Strempler v. Savell, 287 A.D.2d 827, 731 N.Y.S.2d 530 (3rd Dept. 2001). In the case at bar, it was error for the Court to order that the appellant have supervised visitation without conducting a full hearing. What is of striking concern is Dr. Greiss’s testimony that the respondent has difficulty in controlling her anxiety and will tend to exaggerate as a result of her emotional status. Dr. Greiss also found that he was unable to accept as the truth everything that was stated by the respondent because there were some distortions in the respondent’s perception. In addition, the subject child Ryan would curse at the respondent calling her a “bitch” or stating “fuck you.” ‘ It is evident that the respondent is unable to control Ryan’s behavior and has to deal with her anxiety and perception issues. It is unfathomable to believe that the Court would order the appellant to have supervised visitation

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as a result of the respondent’s parenting limitations. In addition, when Ms. Westmeyer testified she stated that she was Ryan’s therapist and therapy started in August 2006. The Respondent did not bring Ryan for therapy between September and December 2006, and then therapy was resumed. The respondent’s failure to bring Ryan to therapy is another example of the respondent’s inability to provide appropriate care for the subject children. The appellant should not be penalized for the respondent’s inability to adequately parent the subject children.

II.

It was error for the Law Guardian to argue a position that was contrary to her clients when the subject children were not under an infirmity?

Family Court Act Section 241 states that “[t]his part establishes a system of law guardians for minors who often require the assistance of counsel to help protect their interests and to help them express their wishes to the court.” Family Court Act Section 242 defines a law guardian as an attorney who is admitted to the practice of law in the State of New York. The assignment of a Law Guardian creates an attorney client relationship with the child. See. Campolongo v. Campolongo, 2 A.D. 3d 476, 768 N.Y.S.2d 498 (2nd Dept. 2003); Drummond v. Drummond, 291 A.D.2d 368, 737 N.Y.S.2d 628 (2nd Dept. 2002). 17

A child in a Family Court proceeding has rights that are protected under the Due Process Clause of the Federal and State Constitutions. (See. U.S. Const 14th Amend.; N.Y. Const, Art.1 Section 6). This is to protect the child’s liberty interest pertaining to the proceeding. See. In the Matter of Glenn F. 117 A.D.2d 1013, 499 N.Y.S.2d 557(4th Dept. 1986). Children who are subject to contested custody proceedings must be represented by a Law Guardian. See. Davis v. Davis, 269 A.D.2d 82, 711 N.Y.S.2d 663 (4th Dept. 2000). The representation of the child’s interests to the court refers to a straightforward obligation to convey the child’s position even if inconsistent with that of the Law Guardian. (See. New York Family Court Practice; Sobie p.786). See. The Law Guardian is not a Guardian Ad Litem who would argue for the best interest of a child unless the child is under a disability. See. Code of Professional Responsibility Cannon 7-12 and New York Family Court Practice; Sobie p.786). See. In re Derick Shea D. ,22 A.D.3d 753, 804 N.Y.S.2d 389, (2 Dept., 2005). Expressing the child's position to the court, once it has been determined with the advice of counsel, is generally a straightforward obligation of the child's attorney, regardless of the opinion of the attorney.

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Family Court Act Section 241, N.Y. Ct. Rules, Section 7.2 (d). See. Mark T. v. Joyanna U.,WL 2252543 (3 Dept.,2009). The Rules of the Chief Judge (22 NYCRR § 7.2) direct that in all proceedings, other than juvenile delinquency and person in need of supervision cases, the child's attorney “must zealously advocate the child's position” (22 NYCRR 7.2[d]. The rule also states that “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”. See. Mark T. v. Joyanna U., WL 2252543 (3 Dept.,2009). In the present matter, the Law Guardian support of respondent’s application to suspend visitation was contrary to the position that was articulated by her clients. Moreover, the Law Guardian’s conduct served to undermine her clients position in the litigation. Furthermore, the Law Guardian’s use of confidential information to undermine the subject v children’s position was a breach of her fiduciary duty to her clients. The New York State Bar Association has developed standards for Law Guardian representation in custody cases. STANDARD B-2 states the following: “The law guardian should develop a position and strategy in 19

conjunction with the child concerning every relevant aspect of the proceedings.”

The commentaries in regards to Standard B-2 states the following: “The desirability of shaping and advocating a complete law guardian plan constitutes a major theme throughout the Bar Association Standards for Representing Children. Given the importance of a custody determination and the wide latitude of the court in determining custodial, visitation and financial issues, the need for such development is manifest. Indeed, the formulation of a comprehensive position and plan may be the paramount law guardian responsibility, for it represents the key to effective advocacy necessary to protect the child's interests.” “When the child is too young to articulate his or her wishes or provide assistance to counsel, the law guardian must of course determine the child's interests independently. As other attorneys in the case, the law guardian should advocate a position on behalf of the client. When the child is of sufficient age to articulate his or her desires and to assist counsel, the plan should be developed with the child's cooperation and agreement. The child often has a keen insight concerning his or her needs. If the child is of sufficient age and maturity, the court must elicit his views.” “When representing more than one child the law guardian should, as early as possible, determine carefully whether a conflict or potential conflict exists. If so, the law guardian should request that the court appoint separate attorneys for the children.”

Cannon 7 of the Code of Professional Responsibility states that “A lawyer should represent a client zealously within the bounds of the law.” Specifically, the relevant portion of Ethical Consideration (“EC”)7-7 states that the, “…authority to make decisions is exclusively that of the client and, if made within the frame work of the law, such decisions are binding on his lawyer.”

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In the case at bar, it is apparent that the Law Guardian argued a position that was contrary to her clients. The Law Guardian substituted her judgment for that of the subject children. The children clearly indicated that they loved their father, did not fear their father, and wanted increased access to their father. The Law Guardian’s actions in supporting the suspension of unsupervised visitation was contrary to the position of her clients, who at the time of the application were not under an infirmity and were able to articulate a position. Mark was six years old and Ryan was ten years old. The children currently are 8 and 12 years old. However, if the Law Guardian was under the impression that Mark who was only six years old at the time of the application was too young to make an informed decision, then the Law Guardian should have been relieved from her assignment as the Law Guardian could not zealously represent both children and argue that visitation should be suspended for Mark and not Ryan. Section DR 9-101 of the Code of Professional Responsibility states that a lawyer “should avoid even the appearance of impropriety.” “An attorney must avoid not only the fact, but even the appearance, of representing conflicting interests.” Schairer v. Schairer, 192 Misc. 2d 155, 745 N.Y.S. 2d 410 (N.Y. Sup Ct. 2002). The court in Raymond v. Raymond,

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174 Misc.2d 158, 622 N.Y.S. 2d 1016 (N.Y. Fam. Ct. 1997), held that doubts to the existence of a conflict of interest should be resolved in favor of disqualification. In Neighborhood Supermarket Chain, Inc. v. Epic Sec. Corp., 162 Misc.2d 218, 610 N.Y.S. 2d 567 (N.Y. Civil Ct. 1994), the court held that an attorney must not place themselves in a position where it appears that they are advancing, conflicting interests. In Marks v. Prisant,171 A.D.2d 665, 567 N.Y.S. 2d 146 (2nd Dept. 1991), the court held “an attorney must avoid not only the fact, but also the appearance, of representing conflicting interests.” Once a conflict has been clearly demonstrated, “the courts will not enter into ‘nice calculations’ as to the amount of prejudice resulting from the conflict.” People v. Gomberg, 38 NY2d 307, 379 N.Y.S.2d 769,(Court of Appeals 1975) (citing Glasser v. United States, 315 US 60, 76). Concurrent representation is improper prima facie. Cinema 5 Ltd. v. Cinerama, inc., et. al, 528 F2d 1384 (2d Cir. 1976). The customary remedy for a conflict of interest is disqualification of the attorney or the law firm with the conflict. In the present matter, if Law Guardian was going to substitute judgment for Mark then there is a clear conflict of interest in the Law Guardian’s continued representation of Ryan. The Law Guardian cannot zealously represent both children while arguing contrary positions.

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_____________________________________________________________ 2. The issue of the law Guardian’s conduct is being raised by the appellant because it would otherwise not be addressed by any party.

III.

It was error for the Family Court Referee to hear the Custody/visitation matter without the Appellant’s formal written consent and a written order of reference.

CPLR Rule 4311 states the following: An order of reference shall direct the referee to determine the entire action or specific issues, to report issues, to perform particular acts, or to receive and report evidence only. It may specify or limit the powers of the referee and the time for the filing of his report and may fix a time and place for the hearing.

CPLR 4311 requires the court to indicate the type of reference that is being made to the referee. In the case at bar, an order of reference transferring the matter to Referee Francine Seiden was not placed on the record and the file does not contain a written order of reference. The referee's authority derives from the order of reference and is limited by its terms as well as by the statutes and rules authorizing references. In re Star , 245 A.D.2d 5, 280 N.Y.S.2d 752 (2nd Dept 1935). Scope of a referee's duties are defined by the order of reference. First Data Merchant Services Corp. v. One Soloution Corp., 14 A.D.3d 534,789 23

N.Y.S.2d 198 (2nd Dept. 2005). The consent of the parties to an order of reference is an essential jurisdictional predicate, and a Judicial Hearing Officer has no power beyond that limited in the order of reference. See. Fernald v. Vinci, 302 A.D.2d 534, 754 N.Y.S.2d 688 (2nd Dept. 2003). An agreement in open court that matter would be heard and reported to court by judicial hearing officer established scope of JHO's authority. JHO's issuance of decision and order determining action exceeded his authority, even though record did not contain order of reference defining scope of JHO's authority. IPro Biz- Enterprises, Inc. v. Kozan, 19 A.D. 3d 1115, 797 N.Y.S.2d 205 (4th Dept. 2005). In the present matter, the fact that there is no order of reference makes any determination that was made by Referee Seiden a nullity as a matter of law. Moreover, there was no verbal or written consent by the appellant in regards to an order of reference being issued to authorize Referee Seiden to adjudicate this matter.

CONCLUSION FOR THE ABOVE STATED REASONS, THE PROCEEDING SHOULD BE REMANDED TO THE FAMILY COURT FOR A VISITATION/CUSTODY HEARING. Respectfully submitted Elliot Green 24

Counsel for Appellant 188 Montague Street, 10th Floor Brooklyn, New York 11201 August 21, 2009

CERTIFICATE OF COMPLIANCE PURSUANT TO 22 NYCRR SECTION 670.10.3(f) The foregoing brief was prepared on a computer. A monospaced typeface was used as follows: Name of typeface: Times New Roman Point Size: 14 Line Spacing Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc., is 3667.

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