Calendar Date: May 31, 2017
J. Lama, Ithaca, for appellant.
J. Hoffman Jr., Albany, for respondent.
J. Mooney, Ithaca, attorney for the children.
Before: Peters, P.J., Garry, Rose, Clark and Rumsey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Rowley, J.), entered
December 31, 2015 in Tompkins County, which, among other
things, dismissed petitioner's application, in proceeding
No. 2 pursuant to Family Ct Act article 6, to modify a prior
order of custody and visitation.
Talbot Jr. (hereinafter the father) and Joann Cunningham
(hereinafter the mother) are the parents of a daughter (born
in 2003) and a son (born in 2006). Pursuant to an order
entered in December 2013, the father was awarded sole legal
and physical custody of the children and the mother received
supervised visitation for one hour each month. In October
2014, the mother filed a petition seeking to enforce her
visitation rights as set forth in the December 2013 order,
alleging that the father had been denying her visitation with
the children. Thereafter, the father petitioned to modify the
prior order and terminate the mother's visitation on the
grounds that, among other things, the mother had abandoned
the children and had a long history of substance abuse and
mental health problems. In response, the mother
cross-petitioned for, among other things, unsupervised
visitation at least four hours per week. Following
fact-finding and Lincoln hearings, Supreme Court
awarded the mother unsupervised visitation with the children
twice per month for up to six hours each visit. This appeal
by the father ensued.
father's sole contention on appeal is that the attorney
for the children improperly advocated a position that was
contrary to the children's expressed wishes to have no
visitation with the mother. We disagree. While an attorney
for the child has a duty to advocate and express the
child's position to the court, such attorney may deviate
from this obligation and advocate a position that is contrary
to the child's express wishes where he or she "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" (22 NYCRR
7.2[d] ; see Matter of Alyson J. [Laurie J.], 88
A.D.3d 1201, 1203 , lv denied 18 N.Y.3d 803');">18 N.Y.3d 803
; Matter of Mark T. v Joyanna U., 64 A.D.3d
1092, 1093-1094 ).
there was ample evidence that the father had thwarted the
mother's efforts to contact the children, attempted to
alienate the children from the mother and manipulated the
children's loyalty in order to turn them against the
mother. The record further establishes that, while the mother
had no contact with the children for a significant period of
time prior to the commencement of the instant proceedings,
the mother made efforts to rehabilitate her relationship with
the children during several court-ordered visits pending
resolution of the proceedings. The father's concern for
the children's emotional health were they to be again
abandoned by their mother and his desire to protect them from
the mother's violent husband were understandable; yet, if
his and the children's professed wishes were followed,
the mother-child relationship would be completely severed.
The attorney for the children at trial properly informed
Supreme Court that the children had expressed a desire not to
visit the mother (see 22 NYCRR 7.2[d] ;
Matter of Kashif II. v Lataya KK., 99 A.D.3d 1075,
1077 ) and, as the record evidence supports a finding
that the children's wishes were both a product of the
father's influence and "likely to result in a
substantial risk of imminent, serious harm to [them], "
the attorney for the children was justified in advocating for
a position contrary to those wishes (22 NYCRR 7.2[d] ;
see Matter of Zakariah SS. v Tara TT., 143 A.D.3d
1103, 1107 ; Matter of Viscuso v Viscuso, 129
A.D.3d 1679, 1680-1681 ).
to the extent that the attorney for the children on appeal
seeks affirmative relief not requested by the father, we note
that the attorney for the children did not file a notice of
appeal and, as such, any arguments in support of such relief
are not properly before us (see Hecht v City of New
York, 60 N.Y.2d 57, 60 ; Matter of Dibble v
Valachovic, 141 A.D.3d 774, 775 n ; Matter of
Susan UU. v Scott VV., 119 A.D.3d 1117, 1119 n 4
Rose, Clark and Rumsey, JJ., concur.
that the order is ...