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

522
CAF 12-01899
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND WHALEN, JJ.


IN THE MATTER OF CARL A. SHAW,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JOANNE M. BICE, RESPONDENT-APPELLANT.


DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR
RESPONDENT-APPELLANT.

MUEHE AND NEWTON, LLP, CANANDAIGUA (GEORGE F. NEWTON OF COUNSEL), FOR
PETITIONER-RESPONDENT.

VICTORIA L. KING, ATTORNEY FOR THE CHILDREN, CANANDAIGUA.


     Appeal from an order of the Family Court, Ontario County (Stephen
D. Aronson, A.J.), entered July 9, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, awarded
petitioner sole custody of the subject children.

     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, respondent mother appeals from an order modifying a
prior order and awarding sole custody of the parties’ two children to
petitioner father, with liberal visitation to the mother. We reject
the mother’s contention that Family Court erred in failing to appoint
separate attorneys for the children when, during the trial, the
parties’ son expressed a desire to reside with the mother, which was
not consistent with the daughter’s expressed wishes. Both children
had previously informed the Attorney for the Children (AFC) that they
wanted to continue residing with the father, who had been granted
temporary custody. During the trial, however, the AFC advised the
court that the son, age nine, wanted to live with his mother because
at her house “he can stay up late and he doesn’t get in trouble.” The
AFC further stated that, in her view, the son’s position was “immature
and thus not controlling” upon the AFC. Following a Lincoln hearing,
the court denied the mother’s request to appoint a new attorney for
the child for the son. At the conclusion of the trial, the court
awarded custody of both children to the father, as advocated by the
AFC. We now affirm.

     The Rules of the Chief Judge provide that an attorney for the
                                 -2-                           522
                                                         CAF 12-01899

child “must zealously advocate the child’s position” and that, “[i]f
the child is capable of knowing, voluntary and considered judgment,
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 interests” (22 NYCRR 7.2 [d] [2]; see
Matter of Swinson v Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d
862). Nevertheless, “[w]hen the attorney for the child is convinced
either that the child lacks the capacity for knowing, voluntary and
considered judgment, or that following the child’s wishes is likely to
result in a substantial risk of imminent, serious harm to the child,
the attorney for the child would be justified in advocating a position
that is contrary to the child’s wishes. In these circumstances, the
attorney for the child must inform the court of the child’s
articulated wishes if the child wants the attorney to do so,
notwithstanding the attorney’s position” (22 NYCRR 7.2 [d] [3]).

     Here, based on our review of the transcript of the Lincoln
hearing, during which the court interviewed the son at length, we
conclude that the court properly denied the mother’s request to
appoint separate counsel for the son. Although the reasons for our
determination cannot be stated in this decision given the confidential
nature of the Lincoln hearing, we note that the AFC on appeal asks us
to affirm, thereby indicating that the son does not object to the
court’s failure to appoint separate counsel on his behalf.

     Finally, we conclude that, contrary to the mother’s remaining
contention, there is a sound and substantial basis in the record to
support the court’s determination that it was in the children’s best
interests to award sole custody to the father, and we thus will not
disturb that determination (see Matter of Tisdale v Anderson, 100 AD3d
1517, 1517-1518).


                                                Frances E. Cafarell




Entered:   May 9, 2014
                                                Clerk of the Court
