Opinion 15-195

October 22, 2015


Digest:         A Family Court judge who ordered a child protective investigation in a case is not disqualified from presiding over other contested proceedings involving the same family.


Rules:          Family Court Act §§ 141; 1011; 1034(1); Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); Opinions 11-64; 09-179; 09-137; 09-21; 08-183/08-202/09-112; 98-134; 89-104; People v Moreno, 70 NY2d 403 (1987).



         A Family Court judge asks if disqualification is required in a case where the judge ordered a child protective investigation by the local department of social services. The judge has presided and is presiding over numerous contested proceedings involving a particular family with several young children. On the return date for certain petitions, the Attorney for the Child submitted a letter from the children’s mental health counselor expressing concern over the impact the parental conflict was having on the children. After reviewing all materials submitted, the judge directed that the parents be investigated for possible neglect. No request for disqualification has been made, and the judge believes he/she can still be fair and impartial in the pending proceedings.

         A judge must avoid impropriety and its appearance in all the judge’s activities (see 22 NYCRR 100.2) and must always act in a way to promote public confidence in the judiciary’s integrity and impartiality (22 NYCRR 100.2[A]). Where, as here, disqualification is not mandated under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14, the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated by this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]), and thus may preside, unless he/she doubts his/her own impartiality in a specific case (see Opinion 11-64).


         As the Committee has previously advised, “a judge does not have to recuse himself/herself solely on the basis of past decisions involving any party” (Opinion 98-134). Moreover, “there is no per se requirement for disqualification ... based upon the judge’s having learned facts about a matter in a judicial capacity” (Opinion 89-104). This judge, while considering materials viewed in connection with certain petitions (including a mental health professional’s concerns about the effects of parental actions on the children), determined that a child protection investigation was warranted. The judge acted pursuant to a statutory provision specifically authorizing a Family Court judge to direct such an investigation in order to decide whether a neglect proceeding should be initiated (see Family Court Act § 1034[1]).1 Clearly, Family Court judges bear “wide discretion and grave responsibilities” for judicial intervention in family life (Family Court Act § 141), particularly when it comes to the protection and safeguarding of children’s “physical, mental, and emotional well-being” (Family Court Act § 1011). A statutorily authorized act taken in furtherance of the judge’s judicial responsibilities toward children involved in family court proceedings cannot form the basis for a reasonable question about the judge’s impartiality.2

         Accordingly, the inquiring judge need not disqualify him/herself in pending or future proceedings involving the parents and children based on his/her decision to order a child protection investigation unless the judge believes that he/she cannot be impartial, a matter left solely to the judge’s own discretion.


         1 Although the Committee cannot comment on legal questions, a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law is necessarily acting ethically (see e.g. Opinion 09-137).

         2 The present inquiry does not involve a complaint to a grievance committee or the Office of Court Administration’s Managing Inspector General of Fiduciary Appointments about an attorney’s misconduct (see e.g., Opinions 09-179; 09-21), which raises very different policy considerations (see Opinion 08-183/08-202/09-112). In “reporting” the parents to the department of social services, this judge is primarily deciding legal issues relevant to the case before him/her.