State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: October 29, 2015 519252 

____________________________________

In the Matter of TINA X.,

Appellant,

v

JOHN X., MEMORANDUM AND ORDER

Respondent.

SCOTT BIELICKI,

Respondent.

(And Two Other Related Proceedings.)

____________________________________

Calendar Date: September 15, 2015

Before: Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

__________

Beth A. Lockhart, Canastota, for appellant.

Costello, Cooney & Fearon, PLLC, Syracuse (Paul G. Ferrara

of counsel), for Scott Bielicki, respondent.

__________

Peters, P.J.

Appeal from an order of the Family Court of Madison County

(Revoir, J.), entered April 3, 2014, which, in three proceedings

pursuant to Family Ct Act article 6, partially denied

petitioner's motion to, among other things, vacate a stipulation

and order. 

Petitioner (hereinafter the mother) and respondent

(hereinafter the father) are the parents of three children (born

in 1997, 2000 and 2007). Pursuant to a June 2007 stipulated

order that was later incorporated into the parties' judgment of
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divorce, the parties shared joint legal custody of the children,

with primary physical custody to the mother and parenting time to

the father. In March 2012, the mother commenced proceedings

seeking enforcement and modification of the visitation provisions

of the June 2007 order. Family Court (McDermott, J.) thereafter

notified Scott Bielicki that it intended to assign him to

represent the children in these proceedings, in response to which

Bielicki disclosed to the court that he had recently been

involved in prosecuting the mother on a charge of endangering the

welfare of a child in his capacity as a part-time Assistant

District Attorney in Madison County. Despite this disclosure,

Family Court determined that there was no conflict that would

disqualify Bielicki from representing the children in this matter

and appointed him as the attorney for the children. 

In November 2012, the father petitioned for sole legal and

primary physical custody of the children, and an order was

subsequently entered awarding him temporary custody. Following a

settlement conference with the Family Court Judge's court

attorney in September 2013, the parties stipulated to an order

providing for joint legal custody, with the father having primary

physical custody and the mother receiving parenting time. The

following month, the mother moved to disqualify Bielicki and

vacate the stipulation and order on the basis of, among other

things, a conflict of interest. Following oral argument and

written submissions on the conflict issue, Family Court (Revoir,

J.) found that no conflict of interest existed precluding

Bielicki from serving as the attorney for the children and

partially denied the mother's motion.1 The mother appeals.

The children continue to be represented by Bielicki on this

appeal (see Family Ct Act § 1120 [b]). Bielicki has not,

however, filed a brief on behalf of the children. Instead, he

has retained private counsel who has submitted a brief on his

behalf, arguing that no conflict of interest existed and seeking

an affirmance of Family Court's order declining to vacate the

1 Family Court scheduled a hearing on the mother's

additional claim that the stipulation and order were procured by

fraud, duress and/or undue influence. 
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custody stipulation on that ground. Under the particular

circumstances of this case, and given that Bielicki's interests

on this appeal may well be adverse to those of the children (see

22 NYCRR 7.2 [b], [d]), we deem it appropriate to relieve

Bielicki of his assignment as attorney for the children on this

appeal (see generally Matter of Mark T. v Joyanna U., 64 AD3d

1092, 1095 [2009]). Accordingly, the decision of this Court will

be withheld and a new attorney will be assigned to represent the

children on this appeal. 

Lahtinen, McCarthy and Lynch, JJ., concur.

ORDERED that the decision is withheld, appellate counsel

for the children is relieved of assignment and new counsel to be

assigned to represent the children on this appeal.

ENTER:

Robert D. Mayberger

Clerk of the Court