Albanese v. Lee

272 A.D.2d 81, 707 N.Y.S.2d 171, 2000 N.Y. App. Div. LEXIS 4897

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 4, 2000
• Status: Published

Opinion

—Order, Family Court, New York County (Judith Reichler, Ref.), entered on or about May 16, 1999, which denied respondent-appellant’s motion to remove the Society for the Prevention of Cruelty to Children (SPCC) as guardian ad litem for her children in a visitation proceeding brought by their father, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, respondent-appellant’s motion granted, and the matter remanded for the appointment of a law guardian.

Family Court improvidently exercised its discretion in denying appellant’s motion to remove SPCC as guardian ad litem and to appoint a law guardian. The record shows that the older child, an unquestionably bright and mature 15-year old, has repeatedly expressed her opposition to visitation and her displeasure with the representation of the SPCC, which she believes is biased towards her father, and that the father has a history of committing violent acts against the mother in the children’s presence and is a convicted felon. Furthermore, the SPCC itself has performed and described its role as being a neutral, rather than the children’s advocate, and there is confusion in the record as to which role it was intended- to play. Accordingly, the motion should have been granted so that the children’s interests were protected and their wishes adequately expressed in court (see, Matter of Elianne M., 196 AD2d 439, ; Family Ct Act §§ 241, 249 [a]; see also, Matter of Rebecca B., 227 AD2d 315; Matter of Scott L. v Bruce N., 134 Misc 2d 240). Concur — Williams, J. P., Wallach, Saxe and Buckley, JJ.