SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

522 

CAF 12-01899 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ. 

 

IN THE MATTER OF CARL A. SHAW, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

JOANNE M. BICE, RESPONDENT-APPELLANT. 

 

DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR

RESPONDENT-APPELLANT. 

MUEHE AND NEWTON, LLP, CANANDAIGUA (GEORGE F. NEWTON OF COUNSEL), FOR

PETITIONER-RESPONDENT. 

VICTORIA L. KING, ATTORNEY FOR THE CHILDREN, CANANDAIGUA.

 

Appeal from an order of the Family Court, Ontario County (Stephen

D. Aronson, A.J.), entered July 9, 2012 in a proceeding pursuant to

Family Court Act article 6. The order, among other things, awarded

petitioner sole custody of the subject children. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: In this custody proceeding pursuant to Family Court

Act article 6, respondent mother appeals from an order modifying a

prior order and awarding sole custody of the parties’ two children to

petitioner father, with liberal visitation to the mother. We reject

the mother’s contention that Family Court erred in failing to appoint

separate attorneys for the children when, during the trial, the

parties’ son expressed a desire to reside with the mother, which was

not consistent with the daughter’s expressed wishes. Both children

had previously informed the Attorney for the Children (AFC) that they

wanted to continue residing with the father, who had been granted

temporary custody. During the trial, however, the AFC advised the

court that the son, age nine, wanted to live with his mother because

at her house “he can stay up late and he doesn’t get in trouble.” The

AFC further stated that, in her view, the son’s position was “immature

and thus not controlling” upon the AFC. Following a Lincoln hearing,

the court denied the mother’s request to appoint a new attorney for

the child for the son. At the conclusion of the trial, the court

awarded custody of both children to the father, as advocated by the

AFC. We now affirm. 

The Rules of the Chief Judge provide that an attorney for the
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CAF 12-01899 

child “must zealously advocate the child’s position” and that, “[i]f

the child is capable of knowing, voluntary and considered judgment,

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” (22 NYCRR 7.2 [d] [2]; see

Matter of Swinson v Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d

862). Nevertheless, “[w]hen the attorney for the child is convinced

either that the child lacks the capacity for knowing, voluntary and

considered judgment, or that following the child’s wishes is likely to

result in a substantial risk of imminent, serious harm to the child,

the attorney for the child would be justified in advocating a position

that is contrary to the child’s wishes. In these circumstances, the

attorney for the child must inform the court of the child’s

articulated wishes if the child wants the attorney to do so,

notwithstanding the attorney’s position” (22 NYCRR 7.2 [d] [3]).

Here, based on our review of the transcript of the Lincoln

hearing, during which the court interviewed the son at length, we

conclude that the court properly denied the mother’s request to

appoint separate counsel for the son. Although the reasons for our

determination cannot be stated in this decision given the confidential

nature of the Lincoln hearing, we note that the AFC on appeal asks us

to affirm, thereby indicating that the son does not object to the

court’s failure to appoint separate counsel on his behalf. 

Finally, we conclude that, contrary to the mother’s remaining

contention, there is a sound and substantial basis in the record to

support the court’s determination that it was in the children’s best

interests to award sole custody to the father, and we thus will not

disturb that determination (see Matter of Tisdale v Anderson, 100 AD3d

1517, 1517-1518).

Frances E. Cafarell

Entered: May 9, 2014

Clerk of the Court