Tuesday, February 21, 2012

A Parent's Right To Counsel In Custody Cases - Dr. McKay Again

Herbert L. v Maria L.

[*1] Herbert L. v Maria L. 2011 NY Slip Op 51350(U) Decided on July 15, 2011 Supreme Court, Westchester County Duffy, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. 

Decided on July 15, 2011 
Supreme Court, Westchester County 
Herbert L., Plaintiff, 
Maria L., Defendant. 
Counsel for Plaintiff 
Nancy Chemtob, Esq. 
3 East 54th Street 
New York, New York 10022 

Counsel for Defendant 
Sophia L. Trott, Esq. 
9 West Prospect Avenue, Suite 208 
Mount Vernon, New York 10550 

Law Guardian 
Therese R. Malach, Esq. 
470 Mamaroneck Avenue 
White Plains, New York 10605 
Colleen D. Duffy, J.
A trial, which has been scheduled since early 2011, is set to commence on July 18, 2011, in this 2008 matrimonial proceeding, on the open issues of custody and visitation. All other issues have been settled by stipulation between the parties.
On June 17, 2011, Defendant wife, Maria L., filed an application seeking appointment of legal counsel, pursuant to Section 722 of Article 18-B of the County Law. Defendant specifically requests that her current private counsel, Sophia L. Trott, Esq., be appointed.
On July 5, 2011, Plaintiff husband, Herbert L., filed an Affidavit in Response to Defendant's motion, in which he neither consents nor opposes Defendant's motion.[FN1] [*2]
Therese R. Malach, Esq., the Attorney for the children of this marriage, L. (DOB: 9/3/99), and R. (DOB: 9/3/99) (the "Subject Children"), submitted an affirmation, dated July 11, 2011, in support of Defendant's motion.
For the reasons set forth below, Defendant's motion is granted, pursuant to Section 722 of Article 18-B of the County Law and Section 262(a) of the Family Court Act. Sophia L. Trott, Esq. is appointed as counsel for Defendant.
In support of her application, Defendant submitted her affirmation averring that she cannot afford to pay a private attorney, that she has not worked since November 2010, when the two children of the marriage were removed from her custody by this Court,[FN2] and that her income was less than $17,000.00 for each of the preceding two years. Defendant submitted tax returns showing adjusted gross income of $53.00 in 2010 and -$28,482.00 in 2009. Defendant also averred that she has had to use her credit cards to pay for the legal fees which she has paid to her attorney and has borrowed significant sums of money from family members to pay counsel fees.
In addition, the Attorney for the Children averred that, while she is unfamiliar with the Defendant's finances, the Defendant has failed to pay her the sums due from her representation of the children in this matter, in an amount totalling $5,404.62.
The Attorney for the Children also represented that Subject Children support the mother's motion so that, in their view, their mother can be on equal footing with their father. The Attorney for the Children also indicated her own belief that the Subject Children's trust and faith in the system and future cooperation with the outcome of the trial will be increased if their mother is represented by counsel.
Based on the circumstances of this case and the finances of the Defendant, the Court finds that an assignment of counsel is appropriate. Defendant has made a sufficient showing that she does not currently have funds with which to pay an attorney. She has not worked since November 2010, has little or no income, has incurred credit card debt and borrowed from family members to pay her own counsel fees, and has failed to pay her share of the fees for the Attorney for the Children. See Borkowski v. Borkowski, 90 Misc 2d 957, 958 (Sup. Ct., Steuben Co. 1977)(court in a matrimonial action may assign counsel for purposes of custody issues).
The Court notes that, pursuant to Section 262(a)(v) of the Family Court Act, an indigent parent seeking custody or contesting a substantial infringement of her right to custody has a right to counsel. Such a litigant should be entitled to no less right where custody issues are fought at the Supreme Court level. See The Matrimonial Commission of the State of New York, 2007 Report to the Chief Judge of the State of New York, 27 Pace L. Rev. 987, *1073 (2007) ("there appears to be no justifiable [*3]rationale for depriving litigants in the Supreme Court of the right to counsel enjoyed by those appearing in Family Court").
The fundamental interests underlying FCA § 262(a) apply with equal force in Supreme Court as the Supreme Court has the authority to exercise every power of the Family Court. Borkowski, 90 Misc 2d 958, citing Kagen v. Kagen, 21 NY2d 532 (1968). Section 262(a) of the FCA was enacted to avoid "the infringement of fundamental interests and rights" for which the New York State Legislature recognized that "counsel is often indispensable to a practical realization of due process of law and may be helpful to the court in making reasoned determinations of fact and proper orders of disposition." FCA § 261.
Although the Court could bifurcate the matrimonial proceeding and refer the custody issue to Family Court where the right to assigned counsel is unequivocal, any referral to Family Court will result in unnecessary delay. This case is ready for trial and has been pending since 2008. At least four other judges previously have presided over this matrimonial matter and this Court has continued on the case despite assignment to a Supreme Court in the First Department in order to avoid a further delay of this matter.
Moreover, the Subject Children are entitled to finality in this matter. Referring the matter to Family Court just so that Defendant could be granted assigned counsel, when all these reasons compel this Court to retain the case, would be unjust. See Borkowski at 958-59 (Supreme Court must weigh numerous factors in determining whether to refer to Family Court; counsel for parent can be available in either court and need not be a factor).
For these reasons, the Court finds that a parent's right to counsel in custody matters in the Family Court pursuant to Section 262(a)(v) of the Family Court Act is equally applicable to such cases pending in Supreme Court. Borkowski at 958.
Other than Borkowski, the only other published decision in New York specifically addressing whether the Supreme Court may assign counsel for custody issues in a matrimonial action is inapposite. See McGee v. McGee, 180 Misc 2d 575, 581 (Sup. Ct., Suffolk Co. 1999).
In McGee, the court gave lip service to the constitutional powers granted to the Supreme Court "to exercise every power of the Family Court," 180 Misc 2d at 582, but, inexplicably, declined to so exercise such power with respect to FCA § 262.[FN3]Id. at 582.
Here, as noted above, this facts of this case dictate a different determination with respect to the assignment of counsel than that reached in McGee. As the evidence at the hearing on the Order to Show Cause indicated, the contentious nature of the proceeding and the custody issues presented here - - involving mental health and severe parental alienation allegations - - put the Subject Children at severe risk and require an expeditious resolution. [*4]
Thus, the nature of this proceeding mandates that each party is properly represented by counsel who is familiar with the proceeding and can proceed forthwith on the scheduled trial date. Denial of Defendant's motion would only result in further delay and injustice to the parties and the Subject Children.[FN4] Matter of M.D. v. T.D., 11 Misc 3d 1074A, 2006 NY Slip Op. 50557U, *3 n.1 (Fam. Ct., Westchester Co. 2006) (need for finality and permanency in life of subject child as well as increased costs and judicial efficiency and economy dictate that delay of the trial would be unjust).
Defendant's current attorney, Sophia L. Trott, Esq., is familiar with all of the facts and circumstances of this case. In light of the upcoming trial, scheduled to start in three days, and in light of the Court's belief that a swift resolution to these custody matters is in the best interests of the Subject Children, Ms. Trott's assignment as counsel for Defendant is warranted. Id.
For all of the reasons set forth above, in the interests of justice, this Court appoints Sophia L. Trott, Esq., as counsel for Defendant pursuant to Article 18-B of the County Law. This scope of this assignment is for Defendant to be represented for the purposes of the proceeding, commencing on July 18, 2011, and any concomitant settlement between the parties related to same. 

Dated: White Plains, New York
July 15, 2011
E N T E R:
Hon. Colleen D. Duffy
Justice of the Supreme Court Footnotes 

Footnote 1: Plaintiff does, however, contend that Defendant has not provided sufficient support for her application. See Affidavit of Herbert L., sworn to July 1, 2011, at ¶ 8. 

Footnote 2: On November 9, 2010, at a hearing on an emergency Order to Show Cause by Plaintiff, the Court awarded Plaintiff temporary sole legal and physical custody of the children, having found, based on the evidence presented at the hearing - - testimony by Dr. Kathleen McKay, Ph.D., and testimony of the Defendant herself - - that the children were in imminent danger in the custody of Defendant, in that the Defendant was perpetuating a custodial arrangement that was overtly hostile to Plaintiff and was supporting the alienation of affections of the Subject Children toward the Plaintiff to the severe emotional detriment of the children. Defendant also was held in contempt of court by this Court on that date, due to her outbursts and profanity in court, despite having been warned to cease such behavior. 

Footnote 3: In McGee, the court declined to "assume to itself the empowerment of FCA § 262" determining that to do so in that case "would be inappropriate." Id. at 582. In fact, the McGee court was not "assuming a power" but rather declining to exercise an existing power. The McGee court's decision to refrain from exercising its constitutionally granted authority is not controlling on this court. The Court also notes that no other published decision in New York has cited to McGee. 

Footnote 4: Domestic Relations Law § 237 provides that a court can require one spouse to pay for the attorneys fees of the other spouse in a matrimonial action, including with respect to issues of custody and visitation, where justice requires and considering the circumstances of the case and the parties. 

Here, the circumstances of this case indicate that such an order would not serve the interests of justice. The Court notes that the primary custody issue in this matrimonial proceeding emanated from the Plaintiff's contentions, which were supported by Dr. McKay, the forensic evaluator, at the November 2010 hearing, that the Defendant has created an overtly hostile environment which has alienated the Subject Children's affection for Defendant. 

Under these circumstances, and, noting that the case has dragged on for over three years during which time Plaintiff husband has been responsible for the lion's share of fees, and, noting that Plaintiff now contends he does not have the financial resources to continue to pay for even those costs, the Court declines to require Plaintiff to bear the cost of Defendant's attorneys fees.


  1. The fact that a person like Theresa Malach is still practicing law is sickening. Theresa Malach was appointed law guardian to my children. She was uncaring, cold and intimidating towards my children; she never returned calls, and then proceeded to suborn perjury during trial. If I didn't see it and live it for myself I would not have believed it. I feel she is mentally unstable and that her license to practice law should be rescinded -

  2. Malach is a criminal. She is also nothing more than a narcissistic bully. It's sickening to think of her in any situation where truth and morals are paramount - yet she is out there, like an infection hovering over Westchester's children, following the money and not the least bit concerned for the rights of her under aged clients. THERESA MALACH IS A DISGRACE.