Parents May Claim Malpractice to Fight Fees for Kids' Lawyers

, New York Law Journal


Justice Saxe

Parties in a divorce case can challenge a claim for fees by a court-appointed attorney representing their children on grounds of malpractice, a unanimous state appeals panel ruled on Tuesday, though it rejected the particular challenge before it.

Appellate Division, First Department Justice David Saxe (See Profile), writing for a five-judge panel, held in Venecia V. v. August V., 305594/04, that the possibility that parties in divorces could assert frivolous malpractice claims to avoid paying fees does not warrant making court-appointed attorneys for children completely immune from such claims. Saxe was joined by Justices Luis Gonzalez (See Profile), Peter Tom (See Profile), Sallie Manzanet-Daniels (See Profile) and Judith Gische (See Profile).

The parents, identified as Venecia V. and August V., have three children, aged 11, 14 and 17, according to the decision. Venecia commenced the divorce action in 2004. The couple stipulated to joint custody, but the trial court awarded primary residential custody to Venecia, who lives in Manhattan.

In 2009, Venecia sought to move to Demarest, N.J., and August responded by seeking to have custody transferred to him. The trial court appointed an attorney, Jo Ann Douglas, to represent the children for purposes of the new custody proceeding.

Manhattan Supreme Court Justice Matthew Cooper (See Profile) ultimately ruled that Venecia could keep custody.

In November 2011, Douglas applied for an order compelling August to pay $2,034.60 in outstanding fees, plus $1,500 in costs associated with the application. August was responsible for 30 percent of Douglas's fees, and had paid them without objection up to that point.

August argued that he should not have to pay the fees because Douglas had committed malpractice. He claimed that Douglas had ignored her professional duty by arguing for Venecia to keep custody on the basis that two of the three children wanted to stay with her, when the children lacked the capacity to make that judgment.

August also maintained Douglas ignored "abundant evidence" that the children were being manipulated by their mother.

Cooper rejected that argument, finding that August had no right to bring the malpractice claim, and that in any case the claim lacked merit. He ruled that August must pay the fees.

August appealed that ruling, along with others related to custody and visitation.

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