                           State of New York
                    Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: October 29, 2015                    519252
____________________________________

In the Matter of TINA X.,
                    Appellant,
      v

JOHN X.,                                     MEMORANDUM AND ORDER
                     Respondent.

SCOTT BIELICKI,
                     Respondent.

(And Two Other Related Proceedings.)
____________________________________


Calendar Date:    September 15, 2015

Before:    Peters, P.J., Lahtinen, McCarthy and Lynch, JJ.

                              __________


     Beth A. Lockhart, Canastota, for appellant.

      Costello, Cooney & Fearon, PLLC, Syracuse (Paul G. Ferrara
of counsel), for Scott Bielicki, respondent.

                              __________


Peters, P.J.

      Appeal from an order of the Family Court of Madison County
(Revoir, J.), entered April 3, 2014, which, in three proceedings
pursuant to Family Ct Act article 6, partially denied
petitioner's motion to, among other things, vacate a stipulation
and order.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of three children (born
in 1997, 2000 and 2007). Pursuant to a June 2007 stipulated
order that was later incorporated into the parties' judgment of
                              -2-                519252

divorce, the parties shared joint legal custody of the children,
with primary physical custody to the mother and parenting time to
the father. In March 2012, the mother commenced proceedings
seeking enforcement and modification of the visitation provisions
of the June 2007 order. Family Court (McDermott, J.) thereafter
notified Scott Bielicki that it intended to assign him to
represent the children in these proceedings, in response to which
Bielicki disclosed to the court that he had recently been
involved in prosecuting the mother on a charge of endangering the
welfare of a child in his capacity as a part-time Assistant
District Attorney in Madison County. Despite this disclosure,
Family Court determined that there was no conflict that would
disqualify Bielicki from representing the children in this matter
and appointed him as the attorney for the children.

      In November 2012, the father petitioned for sole legal and
primary physical custody of the children, and an order was
subsequently entered awarding him temporary custody. Following a
settlement conference with the Family Court Judge's court
attorney in September 2013, the parties stipulated to an order
providing for joint legal custody, with the father having primary
physical custody and the mother receiving parenting time. The
following month, the mother moved to disqualify Bielicki and
vacate the stipulation and order on the basis of, among other
things, a conflict of interest. Following oral argument and
written submissions on the conflict issue, Family Court (Revoir,
J.) found that no conflict of interest existed precluding
Bielicki from serving as the attorney for the children and
partially denied the mother's motion.1 The mother appeals.

      The children continue to be represented by Bielicki on this
appeal (see Family Ct Act § 1120 [b]). Bielicki has not,
however, filed a brief on behalf of the children. Instead, he
has retained private counsel who has submitted a brief on his
behalf, arguing that no conflict of interest existed and seeking
an affirmance of Family Court's order declining to vacate the


    1
        Family Court scheduled a hearing on the mother's
additional claim that the stipulation and order were procured by
fraud, duress and/or undue influence.
                              -3-                  519252

custody stipulation on that ground. Under the particular
circumstances of this case, and given that Bielicki's interests
on this appeal may well be adverse to those of the children (see
22 NYCRR 7.2 [b], [d]), we deem it appropriate to relieve
Bielicki of his assignment as attorney for the children on this
appeal (see generally Matter of Mark T. v Joyanna U., 64 AD3d
1092, 1095 [2009]). Accordingly, the decision of this Court will
be withheld and a new attorney will be assigned to represent the
children on this appeal.

     Lahtinen, McCarthy and Lynch, JJ., concur.



      ORDERED that the decision is withheld, appellate counsel
for the children is relieved of assignment and new counsel to be
assigned to represent the children on this appeal.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
