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New Law Provides Assigned Counsel in Certain Supreme Court Proceedings

October 1, 2006

Author: Amy Schwartz-Wallace

Under Family Court Act §262, certain litigants are entitled to assigned counsel in a myriad of Family Court proceedings including, but not limited to, family offense, custody and visitation, paternity establishment, child welfare, and contempt matters.1  In granting such due process protections over 30 years ago, the Legislature explicitly recognized the enormity of family law-related proceedings and their impact on children and their parents by stating:   

Persons involved in certain Family Court proceedings may face the infringements of fundamental interests and rights, including the loss of a child’s society and the possibility of criminal charges, and therefore have a constitutional right to counsel in such proceedings.  Counsel is often indispensable to a practical realization of due process of law and may be helpful to the court in making reasoned determinations of fact and proper orders of disposition.2

Although Supreme Court presides over proceedings involving identical custody and order of protection issues in marital dissolution or post-divorce judgment cases, no similar right to counsel in these family law matters existed.  Additionally, where a litigant’s case was transferred from the Family Court to the Supreme Court, the right to appointed counsel did not similarly transfer.  As a result of this inconsistency, many of New York’s most vulnerable residents, often domestic violence survivors, were regularly denied access to justice and relief in the courts. 

Without access to assigned counsel in these Supreme Court cases, New Yorkers with limited or no financial resources often had few places to turn to find representation that was free or affordable, as well as competent.  For many poor and working poor individuals, obtaining sufficient funds to cover the retainer fees required by private counsel was an unreachable goal.  Because of large demand and limited resources in many communities, access to civil legal services was not always an option.  As a result, indigent litigants facing family law matters in Supreme Court were forced to borrow money from family or friends, incur sizable debt, drop their cases, or proceed pro se.  In cases where the opposing party was represented by counsel, unrepresented litigants faced obvious disadvantage in cases sure to have profound effect on both their familial and financial stability.      

This injustice played out most egregiously in domestic violence cases where abusers often control the family finances and can afford to retain private counsel.  Countless domestic violence survivors have reported that their abusers routinely and strategically exploited this advantage by having a contested Family Court custody and/or family offense case transferred to the Supreme Court and consolidated with a divorce action, intentionally to deprive her of access to appointed counsel.  Once the survivor was in the Supreme Court without an attorney to safeguard her best interests, she was subjected to manipulation and intimidation and pressured or frightened into dropping the action or settling it with terms detrimental to herself and her children.  Exploiting this gap in the right to representation, batterers in New York were able to misuse the same courts that domestic violence survivors turned to for protection and justice as tools of abuse and weapons of retaliation.      

Courts around the state have struggled to reconcile the pivotal 1975 Court of Appeals ruling In the Matter of Rhonda Smiley3 (where the highest court in New York State held that litigants in Supreme court matrimonial actions do not have a constitutional right to counsel or to assigned counsel in divorce cases) against the rights afforded to these same litigants in the Family Court.  Absent specific legislation, courts across the state have come to different conclusions regarding this issue.4  A 1999 case5 and a compelling 2002 law review article written by Robert Elardo at Buffalo’s Erie County Bar Volunteer Law Project6 argued that the failure to appoint counsel in contested custody proceedings in the Supreme Court amounted to an unconstitutional denial of equal protection to litigants.  Recognizing this inequity, some courts assigned counsel in these proceedings, while others found no such right existed under the law.7  As a result of this lack of uniformity of opinion, some indigent litigants in certain areas of the state enjoyed the benefit of assigned counsel while others had their requests routinely denied.   

Commenting on this inequity in their February 2006 Report to the Chief Judge of the State of New York, the Matrimonial Commission stated, “the Commission notes that there appears to be no justifiable rationale for depriving litigants in the Supreme Court of the right to counsel enjoyed by those appearing in Family Court” and specifically recommended that where Family Court custody cases are removed to the Supreme, counsel shall continue to be provided.8

Responding to this increasingly loud public outcry, Assembly Judiciary Chair Helene Weinstein and Senate Deputy Majority Leader Dean Skelos introduced new remedial legislation providing help to many litigants.  We are pleased to report that the Legislature passed and the Governor signed this important legislation into law this summer.  Effective August 2006, the new law added sub-section 8 to Judiciary Law §35 which states:

Whenever Supreme Court shall exercise jurisdiction over a matter which the Family Court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto pursuant to law, and under circumstances whereby, if such proceedings were pending in Family Court, such court would be required by §262 of the Family Court act to appoint counsel, Supreme Court shall also appoint counsel and such counsel shall be compensated in accordance with the provisions of this section.

Under this new law, indigent litigants, given the right to counsel pursuant to Family Court Act §262, who commence a proceeding in Supreme Court or who have a case transferred from the Family Court to the Supreme will now enjoy the same right to counsel in the Supreme Court.  While the justification for this bill indicates that this bill is intended to remedy inequities related to custody issues, this law has the ability to provide Supreme Court litigants with a potentially broader array of concerns with assigned counsel in matters including but not limited to contested custody and visitation issues, post-dissolution custody and visitation matters, family offense issues, violation and contempt proceedings. 

Although this new law will surely offer key supports to many litigants, it is not without its implementation challenges.  Primarily, the law does not specifically provide for assigned representation in other key matters incident to the dissolution, such as grounds, equitable distribution, child support, or maintenance.  Therefore, litigants and their assigned attorneys in dissolution cases may be in the awkward position of having the benefit of counsel for only the selected portions of their cases, such as contested custody or the family offense.  Obviously, this will make court appearances and negotiations challenging for all involved.  Speculatively, some courts may be inclined to view their new mandate broadly and allow the assigned counsel to provide more holistic representation in order to allow these cases to proceed more expeditiously through the court system.  Additionally, most Supreme Courts do not have a system in place to assign counsel for adult litigants.  As a result of this mandate, courts across the state will likely be scrambling to create an assignment and referral system.  Alternatively, has been talk that some courts, rather than hear these cross-jurisdictional matters and assign counsel, may instead require they be litigated in the Family Court.  We encourage local legal services programs to work with their local Supreme Courts and monitor implementation challenges in their own community.         

Regardless of the implementation concerns, in recognizing and remedying this glaring inequity, this new law begins the process of providing indigent litigants   with a more even playing field.


1  See FCA §262 for a fully enumerated list of all parties entitled to assigned counsel in Family Court Proceedings.

2  Family Court Act §261

3  36 N.Y.2d 433 (1975)

4  See generally, 22 NYCRR §678.11 (Second Department Rules of Practice allowing courts in the 2nd and 11th Judicial Districts to appoint counsel to indigent adults in Supreme Court proceedings pursuant to FCA §262 and those appointments shall be made from the Law Guardian Panels).  See also Borkowski v. Borkowski, 90 Misc. 2d 957 (Sup. Ct. Steuben Co. 1997).  Among other relief in the divorce case, husband requested assigned counsel as to the issue of custody only.  Using FCA §262(a) the trial court determined that the husband had a right to assigned counsel for the custody proceeding only.  In this case, the court stated, “Clearly, the Supreme Court may exercise every power of Family Court.”  See also Petkovsek v. Snyder, 251 AD2d 1088 (4th Dept. 1998).  But see McGee v. McGee, 180 Misc. 2d 575 (Sup. Ct. Nassau Co. 1999).

5  In McGee, the trial court held that while the Family Court Act does allow the appointment of counsel in custody proceedings, this right does not apply in similar custody proceedings before the Supreme Court.  Wife’s counsel argued that because of the concurrent jurisdiction between Supreme and Family Courts in custody matters, a law providing the right to appointed counsel for custody litigants in Family Court only was unconstitutional and violated the equal protection rights of indigent custody litigants in Supreme Court.  The Supreme Court dismissed this argument, but noted that the question of assigning counsel and having such counsel compensated by public moneys was a decision best left to the Legislature.

6  Robert M. Elardo, Equal Protection Denied in New York to Some Family Law Litigants in Supreme Court:  An Assigned Dilemma for the Courts, 29 Fordham Urban L.J. 1125 (2002).

7  See Endnote 4

8  Matrimonial Commission, Report to the Chief Jude of the State of New York (Feb 2006) at pp 57-58.


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