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CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT).

The Third Department, reversing Family Court, determined the child did not receive effective assistance of counsel in this proceeding to modify visitation. Mother sought to eliminate the scheduled visitation with father and allow the child to visit father as the child wished. Family Court denied the petition:

To effectively represent and protect a child’s interests, the attorney for the child’s role is twofold: (1) help the child express his or her wishes to the court, and (2) take an active role in the proceedings … . By meeting with the child and informing Family Court that the child did not want to continue visitation as ordered, and by requesting and participating in the Lincoln hearing, the trial attorney for the child met the first objective. Given the mother’s limited testimony, however, Family Court understandably characterized the record as “thin.” In our view, the attorney for the child should have taken a more active role in the proceedings by presenting witnesses that could speak to the child’s concerns and/or conducting a more thorough cross-examination of the mother. During his brief cross-examination of the mother, for example, the trial attorney for the child did not attempt to elicit any further information about his client’s behavior and demeanor relative to his visits with the father. On this record, we agree with the argument made by the appellate attorney for the child that the trial attorney for the child did not provide effective assistance. Consequently, the order dismissing the petition should be reversed and the matter remitted to Family Court for further proceedings, including a new fact-finding hearing. Matter of Payne v Montano, 2018 NY Slip Op 07990, Third Dept 11-21-18

FAMILY LAW (ATTORNEYS, CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))/ATTORNEYS (FAMILY LAW,  CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))/INEFFECTIVE ASSISTANCE (FAMILY LAW, CHILD DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL, MOTHER SOUGHT A MODIFICATION OF VISITATION WITH FATHER BASED UPON THE CHILD’S REACTIONS TO VISITS WITH FATHER, THE ATTORNEY FOR THE CHILD DID NOT MAKE A SUFFICIENT RECORD ON THE RELEVANT ISSUES THROUGH QUESTIONING THE CHILD AND CROSS-EXAMINING MOTHER (THIRD DEPT))

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