Inherent Bias against Parental Rights in Court Administration of Family Law Fees

In 2006 a Matrimonial Commission  published a Report to the New York Chief Judge. The Report acknowledges the fact that New York State Family Court Judges in the First and Second Department were acting without legal authority, and in violation of the law that created their court, in ordering parents to pay their appointed Attorney for Children lawyers.  Not only are Family Court judges taking this actions without legal authority but they were ordering parents to pay based on hourly fees set by them and without limits or controls, by the parents, or accountability, and in normal custody cases. See Section titled “Unlawful Intrusion and Fees” for more information on the use of Attorneys for Children by Family Court Judges.

In fact, the Third Department based its decision to prohibit Family Court Judges from ordering parents to pay their appointed Attorney for Children lawyers not simply on the mere recital of its existence of the law and the obligation of Family Court Judges to comply but found that prartice of allowing judges to order parents to pay court appointed private attorneys fees [to speak to their children about adult parental matters] was problematic due to “the lack of parameters for a direct-pay system that raises issues about the independence of the law guardian and concerns about fundamental fairness to all children.”

Despite the above, in its Report that Commission, made up of judges, attorneys and other divorce industry operatives, actually recommendated that “the Office of Court Administration seek to amend the Domestic Relations Law, the Family Court Act and the Judiciary Law, to expressly empower courts with the discretion to direct parents with sufficient means to pay the fee of the attorney for the child.”   (excerpt)   In fact, the law is clearly set forth in the Family Court Act’s statute governing the compensation of Attorneys for Children strictly limits the hour rate and maximum amount they can bill and requires that them to be paid by the State.  The Report is an example of the inherent biases against Parental Freedom and Rights that are ingrained in the administration of Family Court justice nationwide.

The laws governing Family Court is even more clearer, two examples from the case archived in here in  our “Prohibition on AFC Fees” section titled “Legal Requirement of Family Court Judge to Comply and Not Alter Laws” are  [1] “The power of courts of statutory origin will be strictly limited to the exact literal meaning of the words used in the statute, holding them to the precise limits of jurisdiction prescribed by law. ” People v. Henries in Riechold Chemicals v. Schenectary Coating Corp.  [2] “A court of limited jurisdiction possess only those powers endowed by statute,’ Smith v. Wietz

Survey of  Appeal Decisions Respecting Statuary Law in the State of New York governing  Attorney for Children compensation:

The Third Department,has held that law guardians shall be paid by the State  as required by Law and does not recognize parental payment as an option in any Supreme Court or Family Court proceedings. The Third Department has also held that there is no statutory or regulatory authority for payment of an appointed law guardian by a parent, and that the lack of parameters for a direct-pay system raises issues about the independence of the law guardian and concerns about fundamental fairness to all children.  Redder v Redder, 17 A.D.3d 10, 792 N.Y.S.2d 201 (3d Dept. 2005);  See also Lips v Lips, 284 A.D.2d 716, 725 N.Y.S.2d 763 (3d Dept. 2001).

The Fourth Department permits parental payment of law guardians in Supreme Court, but does not permit parental payment in Family Court, see Lynda A.H. v Diane T.O., 243 A.D.2d 24, 673 N.Y.S.2d 989 (4th Dept. 1998), lv. denied, 92 N.Y.2d 811, 703 N.E.2d, 680 N.Y.S.2d 457 (1998).

Survey of  Appeal Decisions Contrary to Statuary Law in the State of New York governing Attorney for Children compensation

The First and Second Departments permit the discretionary practice of directing parents with sufficient means to pay the law guardian’s fee (“parental payment”) in both the Supreme Court and Family Court, see Trinh Quoc Tran v Tau Minh Tran, 277 A.D.2d 49, 716 N.Y.S.2d 5 (1st Dept. 2000), lv. dismissed, 96 N.Y.2d 853, 754 N.E.2d 772, 729 N.Y.S.2d 669 (2001), Plovnick v Klinger, 10 A.D.3d 84, 781 N.Y.S. 2d 360 (2d Dept. 2004).