Panel Paves Way for Children to Have Mother as Guardian

, New York Law Journal

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"We disagree with the Family Court's conclusion that there is 'no reason' to appoint the mother as guardian of the children," Chambers wrote.

Citing the Surrogate's Court Procedure Act, the Family Court Act and Matter of Revis v. Marzan, 100 AD3d 1004 (2012), Chambers wrote that Family Courts are permitted to award guardianship of children to their natural parents.

The fact that there was no party opposing the guardianship designation should not be a factor in that appointment, Chambers wrote. She noted that Family Courts, for a variety of reasons, have granted custody of children to their biological parent where there is no opposition to the determination.

"There is no basis for treating an unopposed guardianship petition more restrictively than an unopposed custody petition," Chambers wrote. "The distinctions between guardianship and custody are elusive, as both forms of legal responsibility to a child have very similar attributes."

Justices William Mastro, Reinaldo Rivera and John Leventhal joined in Chambers' ruling.

The same Second Department panel reached the same conclusion unanimously in three other cases presenting facts similar to those in Marisol.

Those cases were Matter of Maria G.G.U. v. Pedro H.P, 2013-02947 (Judicial Hearing Officer Elaine Stack); Matter of Juana A.C.S. v. Dagoberto D., 2013-02945 (Family Court Judge Merik Aaron) and Matter of Maria E.S.G. v. Jose G.G.L, 2013-02779 (Eisman).

The panel in the Matter of Maura A.R.-R., 2013-08053 (Family Court Judge Conrad Singer) consisted of Justices L. Priscilla Hall, Robert Miller, Peter Skelos and Chambers.

The families in four of the cases were from El Salvador, in the fifth the family came from Honduras. In all of the cases, the father had abandoned the family.

Theo Liebmann, director of the Youth Advocacy Clinic at Hofstra law school in Hempstead, said he was assisted in representing Marisol and her family by Hofstra law students Jennifer Sullivan and Brent Weitzberg.

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