Equal protection denied in New York to some family law litigants in supreme court: an assigned counsel dilemma for the courts.

AuthorElardo, Robert M.

In New York, the supreme court and the family court enjoy concurrent jurisdiction over many types of family law cases. (1) Among them are those concerning child custody, child and spousal support, adoption, abuse and neglect, parental rights termination, and paternity. For some types of cases, such as those concerning adoption and child guardianship, the surrogate's court also has concurrent jurisdiction. (2) The supreme court has general jurisdiction and can technically hear cases that the family or surrogate's court may adjudicate. (3) As a practical matter, the supreme court does not exercise its theoretical jurisdiction over some of these case types. (4)

Nevertheless, the supreme court routinely exercises its concurrent jurisdiction in certain family law areas, one of the most important of which is child custody. Child custody is so important that the New York Family Court Act (FCA) section 261 provides litigants in child custody matters with a right to counsel: "Persons involved in certain family court proceedings may face the infringement of fundamental interests and rights, including the loss of a child's society ... and therefore have a constitutional right to counsel in such proceedings." (5)

Section 262(a) of the FCA details several types of cases in which the parties have the right to assigned counsel. FCA section 262(c) further provides that "any order for the assignment of counsel issued under this part shall be implemented as provided in article eighteen-B of the county law." (6) This statutory scheme results in indigent parents (7) and respondents (8) in child custody matters being routinely provided assigned counsel and, thus, having protected what FCA section 261 declares to be their "constitutional right to counsel"--at least if their case happens to be in the family court. (9) Unfortunately, this right is only guaranteed in family court proceedings. No similar statutes expressly recognize or provide for the implementation of a similar right to assigned counsel in supreme court.

Interestingly, though, the Surrogate's Court Procedure Act (SCPA) expressly provides for the right to assigned counsel for parents and others that find themselves in essentially identical types of cases that may be heard in surrogate's court. (10) SCPA section 407 was enacted just two years after FCA sections 261 and 262. (11) This quick follow up was no doubt brought about, at least in part, because when the legislation to create FCA sections 261 and 262 was still pending, the Surrogates' Association had already recognized that litigants in the surrogates' courts were being inappropriately left out in the cold. It wrote:

The declaration of public policy set forth in new Section 261 would seem to cover all courts having jurisdiction over any of the proceedings that are specified. However, in the amendments to the County Law relating ... to ... expenses of counsel assigned to these indigent persons, the sections relate only to proceedings in the Family Court.... We thus have the anomalous situation of a legislative declaration of public policy which would seem to cover the Surrogates' Courts and at the same time provisions for implementing that policy which relate only to the Family Court and exclude the Surrogates' Courts. This confusion would not be a reason for disapproving the bill. It might leave the Surrogates' Courts in a position where counsel would necessarily be provided without any means of compensating counsel. (12) With the enactment of SCPA section 407 two years later, this "confusion" came to an end? The bill's sponsor in the senate discussed the recent statutory changes providing for assigned counsel in family court and addressed the surrogate's court omission:

Inexplicably, the statute failed to recognize that in proceedings such as adoption proceedings and some proceedings for termination of parental rights, the Surrogate's Court has concurrent jurisdiction with the Family Court and did not extend the right to counsel to such proceedings in that Court. As a conforming, if not constitutionally required change, this bill effects necessary conforming amendments to include the Surrogate's Court. (14) Unfortunately, there is still no clear statewide pronouncement providing for assigned counsel in similar cases adjudicated in supreme court. A comparison of supreme court rules shows that New York's four judicial departments treat the issue inconsistently. The Second Department rule is by far the most helpful. Section 678.11, entitled, "Assignment of Counsel," begins as follows:

Assignment of counsel by the Family Court, Supreme Court or Surrogate's Court to represent indigent adults in proceedings pursuant to section 262 of the Family Court Act, shall be made from law guardian panels designation [sic] pursuant to Part 679 of this Title (The rules of the Appellate Division, Second Department). (15) This section specifically discusses how supreme court (and surrogate's court) judges are to refer litigants to assigned counsel pursuant to FCA section 262. (16) It does not, however, explain whether such assignments are a discretionary power or a mandated duty. Interestingly, although the Second Department includes the Second, Ninth, Tenth, and Eleventh Judicial Districts, section 678.11 falls under Part 678, which is entitled "Assigned Counsel Plan Second and Eleventh Judicial Districts" and apparently only applies to those two districts. (17) The rules provide no plan for the Ninth or Tenth Districts.

The First Department rule is entitled, "Assignment of counsel in Family Court," but the actual text of the rule does not specifically limit its scope to family court proceedings. (18)

The Third and Fourth Department rules do not specifically address this issue or mention FCA section 262. (19) In 1998, however, the Fourth Department heard a series of appeals from a matter in which the Herkimer County Supreme Court had appointed assigned counsel for both a family offense issue and a custody issue. (20) The Fourth Department apparently assumed that the supreme court's appointing counsel was proper and that the indigent's right to assigned counsel stemmed from the FCA. (21) In discussing whether the appellant had the right to have a third appointed counsel for her custody issue (she had dismissed the first two attorneys that the court had assigned her), the court wrote, "An indigent party's right to assigned counsel under the Family Court Act is not absolute." (22) In finding that the supreme court "did not abuse its discretion in denying petitioner's request for new assigned counsel," the Fourth Department cited a series of appellate division cases that were appeals from family court cases. (23) Those cases discuss family court litigants' right to assigned counsel. Thus, apparently (but by no means explicitly) the Fourth Department was of the view that the right to assigned counsel in supreme court was the same as in family court.

Nonetheless, without a statute that explicitly applies to the supreme court, indigent parents and others have met with limited and varied success obtaining assigned counsel in supreme court to assist them in cases covered by FCA section 261 and SCPA section 407. This has been true even under the relatively enlightened rules of the Second and Eleventh Judicial Districts. (24)

Perhaps the most egregious example of injustice resulting from this inequitable treatment occurs when the financially solvent custody litigant chooses to initiate a custody proceeding in supreme court rather than in family court so that the indigent parent will have difficulty obtaining an assigned attorney.

  1. FACING THE DILEMMA

    In 1984, after two unsuccessful attempts to convince the court to appoint counsel, I brought an Article 78 proceeding (25) asking for a writ of mandamus ordering an Erie County Supreme Court justice to appoint assigned counsel for an indigent parent who had been served with a post divorce order to show cause to appear in supreme court regarding custody of his child. (26) The underlying case became moot once the matter was referred to family court. (27) It did result, however, in a meeting among then Eighth District Administrative Judge Kane, the president of the Bar Association of Erie County, the then administrator of the local Assigned Counsel Program, (28) an assistant attorney general (representing the supreme court justice), and myself. Justice Kane agreed that supreme court justices could make assignments pursuant to FCA section 262 and agreed to write an internal memo to the supreme court justices in the Eighth Judicial District informing them of this power.

    I became the defacto local protector of this right to assigned counsel in supreme court. Other local legal services and legal aid programs were aware of the case that I had brought and they referred to me clients in need of assigned counsel in supreme court. Inevitably I would end up talking to the judge's law clerk about Judge Kane's internal memo (which I had never seen) and about what was required to get the client assistance from the Assigned Counsel Program. The process was inefficient, and I am sure that many people slipped through the cracks and went without counsel. Nonetheless, I was glad to help in the cases that were brought to my attention, and my assistance always resulted in referral to the Assigned Counsel Program and the assignment of an attorney. (29)

    Recently, however, a member of the Board of Directors of the Assigned Counsel Program indicated that the program does not assign attorneys for family law matters in the supreme court because it is not directed by statute to do so. A directive, either in the form of a statute, court rule, or appellate case decision, is clearly necessary to effect change. I have discussed this problem with legal service advocates throughout the state who want to remedy this injustice in their own localities. (30) Their attempts to deal with this issue locally have only...

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