        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

490
CAF 11-02154
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF AMANDA J. MCDERMOTT,
PETITIONER-RESPONDENT-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

ANDREW JOHN BALE,
RESPONDENT-PETITIONER-RESPONDENT.
-----------------------------------------
SANFORD A. CHURCH, ESQ., ATTORNEY FOR THE
CHILDREN, APPELLANT.


SANFORD A. CHURCH, ATTORNEY FOR THE CHILDREN, ALBION, APPELLANT PRO
SE.

MUSCATO, DIMILLO & VONA, L.L.P., LOCKPORT (P. ANDREW VONA OF COUNSEL),
FOR PETITIONER-RESPONDENT-RESPONDENT.

JAMES D. BELL, BROCKPORT, FOR RESPONDENT-PETITIONER-RESPONDENT.


     Appeal from an order of the Family Court, Orleans County (James
P. Punch, J.), entered January 21, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted the
parents joint custody of their children, with petitioner-respondent
having primary physical residence.

     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, the Attorney for the Children (AFC) appeals from an
order granting the parties joint custody of their two children, with
primary physical residence to petitioner-respondent mother and liberal
visitation to respondent-petitioner father. The order incorporated
the terms of a written stipulation executed by the parties on the eve
of trial. The AFC refused to join in the stipulation, but Family
Court approved the stipulation over the AFC’s objection. We reject
the AFC’s contention that the court erred in approving the
stipulation. Although we agree with the AFC that he “ ‘must be
afforded the same opportunity as any other party to fully participate
in [the] proceeding’ ” (Matter of White v White, 267 AD2d 888, 890),
and that the court may not “relegate the [AFC] to a meaningless role”
(Matter of Figueroa v Lopez, 48 AD3d 906, 907), the children
represented by the AFC are not permitted to “veto” a proposed
settlement reached by their parents and thereby force a trial. The
                                 -2-                           490
                                                         CAF 11-02154

record reflects that, unlike in Matter of Figueroa, upon which the AFC
relies, the court here gave the AFC a full and fair opportunity to be
heard, and the AFC stated in detail all of the reasons that he opposed
the stipulation. Indeed, the court gave credence to many of the
comments made by the AFC, as did the attorneys for the parents, both
of whom agreed to modify the stipulation to address several of the
AFC’s concerns.

     We cannot agree with the AFC that children in custody cases
should be given full-party status such that their consent is necessary
to effectuate a settlement. The purpose of an attorney for the
children is “to help protect their interests and to help them express
their wishes to the court” (Family Ct Act § 241). There is a
significant difference between allowing children to express their
wishes to the court and allowing their wishes to scuttle a proposed
settlement. We note that the court is not required to appoint an
attorney for the children in contested custody proceedings, although
that is no doubt the preferred practice (see Matter of Amato v Amato,
51 AD3d 1123, 1124; Davis v Davis, 269 AD2d 82, 85). Thus, there is
no support for the AFC’s contention that children in a custody
proceeding have the same legal status as their parents, inasmuch as it
is well settled that parents have the right to the assistance of
counsel in such proceedings (see § 262 [a] [v]; Matter of Kristin R.H.
v Robert E.H., 48 AD3d 1278, 1279).

     In sum, we conclude that, where the court in a custody case
appoints an attorney for the children, he or she has the right to be
heard with respect to a proposed settlement and to object to the
settlement but not the right to preclude the court from approving the
settlement in the event that the court determines that the terms of
the settlement are in the children’s best interests. Parents who wish
to settle their disputes should not be required to engage in costly
and often times embittered litigation merely because their children or
the attorney for the children would prefer a different custodial
arrangement.




Entered:   April 27, 2012                      Frances E. Cafarell
                                               Clerk of the Court
