Professional Documents
Culture Documents
AD No. 2008-02010
AD No. 2008-02010
In the Matter of Dawn Delevan
respondent, v Sean Delevan, appellant.
________________________________________________x
1
TABLE OF CONTENTS
TABLE OF AUTHORITIES………………………………..……3-6
STATEMENT OF FACTS............................................................9-14
ARGUMENT................................................................................14-24
III. It was error for the Family Court Referee to hear the
Custody/visitation matter without the Appellant’s
formal written consent and a written order of
reference.
CONCLUSION............................................................................................24
2
TABLE OF AUTHORITIES
Biagi v. Biagi, 124 A.D.2d 770, 508 N.Y.S. 2d 488 (2nd Dept. 1986)………
…………………………………………………………..……14
Dept.2008)………………………………………………………………….14
1975)………………………………………………………………………..14
Matter of Erie County Dept. of Social Services, 127 A.D.2d 937, 513
Dept. 1997)…………………………………………………………………14
Youngblood v. Amrhein, 216 A.D.2d 475 628 N.Y.S. 2d 386 (2nd Dept.
1995)……………………………………………………………….……….15
………………………………………………………..……15
…………………………………………………………..15
Hotze v. Hotze, 57 A.D.2d 85, 394 N.Y.S.2d 753 (4th Dept. 1977)…………
3
……………………………………………………………15
In the Matter of Vann v. Vann, 187 A.D.2d 821, 589 N.Y.S.2d 715 (3rd Dept.
1992)…………………………………………………………………15
In the Matter of Melinda “A”., 278 A.D.2d 754, 717 N.Y.S.2d 776 (3rd Dept,
2000)…………………………………………………………………….….15
Buffin v. Mosley, 263 A.D.2d 962, 695 N.Y.S.2d 442 (4th Dept. 1999)………
………………………………………………………………..15
In the Matter of Scotty C., 263 A.D.2d 962, 546 N.Y.S.2d 461 (4th Dept.
1999)………………………………………………………………………..16
Strempler v. Savell,287 A.D.2d 827, 731 N.Y.S.2d 530 (3rd Dept. 2001)……
………………………………………………………………..…16
2003)………………………………………………………………………..17
Drummond v. Drummond, 291 A.D. 368, 2d 737 N.Y.S.2d 628 (2nd Dept.
2002)………………………………………………………………………..17
In the Matter of Glenn F. 117 A.D.2d 1013, 499 N.Y.S.2d 557(4th Dept.
1986)…………………………………………………………………….…18
Davis v. Davis, 269 A.D.2d 82, 711 N.Y.S.2d 663 (4th Dept. 2000)…………
……………………………………………………….……18
4
In re Derick Shea D. ,22 A.D.3d 753, 804 N.Y.S.2d 389, (2 Dept., 2005)…
……………………………………………………………………..18
………..……………………………………………………………21
Raymond v. Raymond, 174 Misc. 2d 158, 622 N.Y.S. 2d 1016 (N.Y. Fam.
Ct. 1997)…………………………………………………………………....21
Neighborhood Supermarket Chain, Inc. v. Epic Sec. Corp., 162 Misc.2d 218,
Marks v. Prisant, 171 A.D.2d 665, 567 N.Y.S. 2d 146 (2nd Dept. 1991)……
…………………………………………………………………..22
1975)…………………………………………………………………..……22
Cinema 5 Ltd. v. Cinerama, inc., et. al, 528 F2d 1384 (2d Cir. 1976)………
…………………………………………………………….….22
Fernald v. Vinci, 302 A.D.2d 534, 754 N.Y.S.2d 688 (2nd Dept. 2003)………
5
………………………………………………………………23
IPro Biz- Enterprises, Inc. v. Kozan, 19 A.D. 3d 1115, 797 N.Y.S.2d 205 (4th
Dept. 2005)………………………………………………………………....24
State Statutes
Federal Statutes
Secondary Sources
6
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
____________________________________________x
AD No. 2008-02010
In the Matter of Dawn Delevan
respondent, v Sean Delevan, appellant.
____________________________________________x
2. The full name of the original parties were Sean Delevan, petitioner,
4. The action was commenced by the filing of a petition with the Clerk
visitation.
7
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
____________________________________________x
AD No. 2008-02010
In the Matter of Dawn Delevan
respondent, v Sean Delevan, appellant.
____________________________________________x
PRELIMINARY STATEMENT
The appellant initially filed a petition for visitation. That petition was
subject child, Ryan is 10 years old and Mark is six years old.
June 14, 2007. At the hearing Dr James Greiss and Ruth Westmeyer (social
8
supervised visitation.
QUESTIONS PRESENTED
III. Was it error for the Family Court Referee to hear the
Custody/visitation matter without the Appellant’s
formal written consent and a written order of
reference?
STATEMENT OF FACTS
Court before Judge Salvatore J. Modica. The Law Guardian informed the
Court that the subject children want to see the appellant, they love him, miss
him, do not fear him, and have not witnessed any domestic violence between
the appellant and respondent (T.7-10-06 p.6). The Court found that the
9
Respondent mother unilaterally stopped visitation between the appellant and
subject children between March 2006 and June 2006 (T.7-10-06 p.8). The
Modica, and the Court ordered forensic evaluation of the parties (T.2-2-07
On April 4,2007 the matter was presided over by Referee Francine Seiden.
The Court noted that this proceeding was transferred from Part 9 who had a
requested that the Court implements supervised visitation (T. 6-6-07 p. 33).
The Law Guardian’s support of the Respondent’s application was despite the
fact that the Law Guardian was informed by her clients that they wanted to
live with their father, were afraid of their step-father, and were physically
abused by their step-father. Ryan has contacted the Law Guardian and
informed the Law Guardian that he was unhappy with residing with his
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mother the respondent and was concerned that he would not be able to visit
On June 14, 2007 the Court conducted a hearing, which was limited
The parties stipulated that Dr. Greiss was an expert in psychology and
the forensic report was entered into evidence as Court’s Exhibit 1 (T.6-14-07
p.5). Dr. Greiss testified that the Appellant should not have unsupervised
visitation with his sons Ryan and Mark because of the negative relationship
that the children have with their mother (T.6-14-08 p.7). Dr. Greiss believes
that the Appellant’s conduct in telling the children that the Appellant wants
the children to live with him has a negative impact on the children’s
The children view the Appellant in a positive light and have a lot of
fun with the Appellant. The Appellant and his sons, Ryan and Mark have
light. It is evident that the Appellant loves his children and is concerned
Ryan has informed Dr. Greiss that his mother freaks out and does not
11
have the ability to handle things. Dr. Greiss is of the opinion that these
statements are not age appropriate (T.6-14-08 p.9). Dr. Greiss also believes
that Ryan is fabricating stories that portray his mother in a negative light
disappointed if they were not permitted to live with the Appellant (T.6-14-08
p.11,15). The subject child, Ryan is fixated on the Appellant and is afraid of
losing him (T.6-14-08 p.15). It appears that the Appellant and Respondent
are both coaching the children to view each other in a negative light.
The subject child, Ryan age 10 curses at the respondent. Ryan calls the
respondent a ‘bitch” or uses the word “fuck you” (T.6-14-08 p. 38-39). The
Respondent mother has difficulty in controlling her anxiety and will tend to
and tends to distort the situation. Dr. Greiss was unable to accept
unsupervised contact between the Appellant and his children the children’s
relationship with their mother may suffer irreparable harm (T.6-14-08 p.12).
The purpose of suspending visitation between the Appellant and his children
12
children (T.6-14-08 p.13).
therapy for the Respondent and family therapy with Ryan and Mark (T.6-14-
08 p.120). Ryan started in therapy with Ms. Westmeyer in August 2006. The
Respondent did not bring Ryan for therapy between September and
Ms. Westmeyer is concerned about the interaction that Ryan is having with
his father the, Appellant. This is because Ryan’s conduct has deteriorated
since the Appellant, was reintroduced into Ryan’s life (T.6-14-08 p.113-114).
Ms. Westmeyer has not interviewed or met with the Appellant (T.6-14-08
p.120). The Appellant did call Ms. Westmeyer’s office and she returned his
mother, the Respondent and in February 2007, Ryan’s position was that he
13
therapeutic visitation. The initial six visits will be paid for pursuant to 722-C
_____________________________________________________________
1. On March 24, 2009, the Family Court conducted a reconstruction hearing in regards to a proceeding that occurred on
February 5,2007. The Court did not attempt to reconstruct the in-camera interview of the children, that was also
conducted on February 5,2007.
ARGUMENT
without conducting a full hearing Biagi v. Biagi, 124 A.D.2d 770, 508
N.Y.S. 2d 488 (2nd Dept. 1986), In re Amber D.C., 53 A.D.3d 613, 862
N.Y.S.2d 103, 2008 (2nd Dept.2008). "The issue of visitation, like that of
controverted affidavits, but only after a full and plenary hearing." Kresnicka
v. Kresnicka, 48 A.D.2d 929, 369 N.Y.S. 2d 522 (2nd Dept. 1975), Matter of
Erie County Dept. of Social Services, 127 A.D.2d 937, 513 N.Y.S.2d 56 (4th
14
conflicting allegations, should be based on a full hearing Naughton-General
v. Naughton, 247 A.D.2d 933, 662 N.Y.S. 2d 956 (4th Dept. 1997).
"Family Court's fact-finding hearing, with only father and mother present,
did not meet requirement of full inquiry into any potential deleterious
effects, on son granting visits with non-custodial father, where neither expert
v. Amrhein, 216 A.D.2d 475 628 N.Y.S. 2d 386 (2nd Dept. 1995), Ciulla v.
that such visitation is detrimental to the child' s best interest Farsi v. Farhi,
A.D.2d 85, 394 N.Y.S.2d 753 (4th Dept. 1977), In the Matter of Vann v.
Vann, 187 A.D.2d 821, 589 N.Y.S.2d 715 (3rd Dept. 1992). The denial of
substantial evidence that such visitation is adverse to the child's best interest.
In the Matter of Melinda “A”., 278 A.D.2d 754, 717 N.Y.S.2d 776 (3rd Dept,
2000).
15
must be substantial evidence that the visitation would affect the
psychological health of the child. Buffin v. Mosley, 263 A.D.2d 962, 695
parent/child bond has been irreparably damaged. In the Matter of Scotty C.,
In the case at bar, it was error for the Court to order that the appellant
striking concern is Dr. Greiss’s testimony that the respondent has difficulty
emotional status. Dr. Greiss also found that he was unable to accept as the
truth everything that was stated by the respondent because there were some
would curse at the respondent calling her a “bitch” or stating “fuck you.” ‘
and has to deal with her anxiety and perception issues. It is unfathomable to
believe that the Court would order the appellant to have supervised visitation
16
as a result of the respondent’s parenting limitations.
In addition, when Ms. Westmeyer testified she stated that she was
Ryan’s therapist and therapy started in August 2006. The Respondent did
not bring Ryan for therapy between September and December 2006, and
then therapy was resumed. The respondent’s failure to bring Ryan to therapy
for the subject children. The appellant should not be penalized for the
Family Court Act Section 241 states that “[t]his part establishes a
system of law guardians for minors who often require the assistance of
counsel to help protect their interests and to help them express their wishes
to the court.” Family Court Act Section 242 defines a law guardian as an
attorney who is admitted to the practice of law in the State of New York. The
498 (2nd Dept. 2003); Drummond v. Drummond, 291 A.D.2d 368, 737
17
A child in a Family Court proceeding has rights that are protected
under the Due Process Clause of the Federal and State Constitutions. (See.
U.S. Const 14th Amend.; N.Y. Const, Art.1 Section 6). This is to protect the
Glenn F. 117 A.D.2d 1013, 499 N.Y.S.2d 557(4th Dept. 1986). Children who
Guardian. See. Davis v. Davis, 269 A.D.2d 82, 711 N.Y.S.2d 663 (4th Dept.
2000).
with that of the Law Guardian. (See. New York Family Court Practice; Sobie
p.786). See. The Law Guardian is not a Guardian Ad Litem who would
argue for the best interest of a child unless the child is under a disability.
Family Court Practice; Sobie p.786). See. In re Derick Shea D. ,22 A.D.3d
18
Family Court Act Section 241, N.Y. Ct. Rules, Section 7.2 (d). See. Mark T.
The Rules of the Chief Judge (22 NYCRR § 7.2) direct that in all
supervision cases, the child's attorney “must zealously advocate the child's
position” (22 NYCRR 7.2[d]. The rule also states that “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
clients.
The New York State Bar Association has developed standards for Law
following:
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conjunction with the child concerning every relevant aspect of the
proceedings.”
following:
“When the child is too young to articulate his or her wishes or provide
assistance to counsel, the law guardian must of course determine the child's
interests independently. As other attorneys in the case, the law guardian should
advocate a position on behalf of the client. When the child is of sufficient age to
articulate his or her desires and to assist counsel, the plan should be developed
with the child's cooperation and agreement. The child often has a keen insight
concerning his or her needs. If the child is of sufficient age and maturity, the court
must elicit his views.”
“When representing more than one child the law guardian should, as early as
possible, determine carefully whether a conflict or potential conflict exists. If so,
the law guardian should request that the court appoint separate attorneys for the
children.”
“A lawyer should represent a client zealously within the bounds of the law.”
that the, “…authority to make decisions is exclusively that of the client and,
if made within the frame work of the law, such decisions are binding on his
lawyer.”
20
In the case at bar, it is apparent that the Law Guardian
argued a position that was contrary to her clients. The Law Guardian
substituted her judgment for that of the subject children. The children clearly
indicated that they loved their father, did not fear their father, and wanted
clients, who at the time of the application were not under an infirmity and
were able to articulate a position. Mark was six years old and Ryan was ten
However, if the Law Guardian was under the impression that Mark
who was only six years old at the time of the application was too young to
make an informed decision, then the Law Guardian should have been
relieved from her assignment as the Law Guardian could not zealously
represent both children and argue that visitation should be suspended for
attorney must avoid not only the fact, but even the appearance, of
745 N.Y.S. 2d 410 (N.Y. Sup Ct. 2002). The court in Raymond v. Raymond,
21
174 Misc.2d 158, 622 N.Y.S. 2d 1016 (N.Y. Fam. Ct. 1997), held that doubts
Corp., 162 Misc.2d 218, 610 N.Y.S. 2d 567 (N.Y. Civil Ct. 1994), the court
Prisant,171 A.D.2d 665, 567 N.Y.S. 2d 146 (2nd Dept. 1991), the court held
“an attorney must avoid not only the fact, but also the appearance, of
Once a conflict has been clearly demonstrated, “the courts will not
enter into ‘nice calculations’ as to the amount of prejudice resulting from the
Appeals 1975) (citing Glasser v. United States, 315 US 60, 76). Concurrent
al, 528 F2d 1384 (2d Cir. 1976). The customary remedy for a conflict of
interest is disqualification of the attorney or the law firm with the conflict.
judgment for Mark then there is a clear conflict of interest in the Law
22
_____________________________________________________________
2. The issue of the law Guardian’s conduct is being raised by the appellant because it would otherwise not be addressed
by any party.
III. It was error for the Family Court Referee to hear the
Custody/visitation matter without the Appellant’s
formal written consent and a written order of
reference.
An order of reference shall direct the referee to determine the entire action or
specific issues, to report issues, to perform particular acts, or to receive and report
evidence only. It may specify or limit the powers of the referee and the time for
the filing of his report and may fix a time and place for the hearing.
CPLR 4311 requires the court to indicate the type of reference that is
Referee Francine Seiden was not placed on the record and the file does not
references. In re Star , 245 A.D.2d 5, 280 N.Y.S.2d 752 (2nd Dept 1935).
Scope of a referee's duties are defined by the order of reference. First Data
23
N.Y.S.2d 198 (2nd Dept. 2005).
that limited in the order of reference. See. Fernald v. Vinci, 302 A.D.2d 534,
754 N.Y.S.2d 688 (2nd Dept. 2003). An agreement in open court that matter
action exceeded his authority, even though record did not contain order of
CONCLUSION
FOR THE ABOVE STATED REASONS, THE
PROCEEDING SHOULD BE REMANDED TO THE FAMILY
COURT FOR A VISITATION/CUSTODY HEARING.
Respectfully submitted
Elliot Green
24
Counsel for Appellant
188 Montague Street, 10th Floor
Brooklyn, New York 11201
August 21, 2009
CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR SECTION 670.10.3(f)
Point Size: 14
The total number of words in the brief, inclusive of point headings and
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