Opinion 25-32

March 27, 2025

Digest:  Where a Family Court judge’s second-degree relative is employed in a high-level administrative role by a not-for-profit service provider and does not work with or oversee the agency’s supervised visitation program, the judge may refer litigants to the supervised visitation program but must disclose the relative’s employment.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(d)(iii); 100.3(E)(1)(e); Opinions 24-133; 19-150; 16-28; 12-163; 05-152; 04-101; 98-138.

Opinion:

          The inquiring Family Court judge states that his/her second-degree relative is employed as a deputy director of a county-wide service provider organization, to which the judge makes direct referrals.  As relevant here, the not-for-profit organization provides a no-cost supervised visitation program, which the judge explains “is usually the only option for low-income or indigent Family Court litigants that are required to participate in [such a] program.”  The judge’s relative does not directly or indirectly oversee the supervised visitation program, but instead maintains exclusively administrative responsibilities.  The judge asks if it is sufficient to disclose his/her relative’s employment and position on the record, or whether disqualification is required.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  Therefore, a judge must disqualify in any proceeding where his/her impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when a relative within six degrees has an interest that could be affected by the proceeding or a relative within four degrees is likely to be a material witness (22 NYCRR 100.3[E][1][d][iii]; 100.3[E][1][e]).

          Since “[l]itigants and family members involved in Family Court matters are often referred to . . . a service provider,” we have previously had occasion to address a Family Court judge’s obligations when a relative is employed by a local not-for-profit service provider (Opinion 05-152).  In Opinion 05-152, the judge’s spouse was employed as an intake coordinator at a local charity.  We said the Family Court judge must disclose his/her spouse’s employment with the service provider, subject to disqualification in certain circumstances if the spouse is personally involved in the matter (see id.).  Where a Family Court judge’s child was employed as a social worker in another county by a regional restorative justice program provider, we advised that a judge “may refer cases to the agency’s restorative justice program so long as the judge is satisfied that his/her child will never be assigned to work on cases in the judge’s county and the judge discloses his/her child’s employment with the agency” (Opinion 24-133).  This was notwithstanding the potential for the judge’s child to “be involved in ‘staff discussions’” about the provider’s “efforts for cases that originated in the judge’s court” (id.).

          Where a Family Court judge’s first-degree relative has a part-time entry-level job with an agency where the county department of social services may place a child, we said the judge “(1) is disqualified, subject to remittal, from any cases in which the judge’s relative has been personally involved but (2) has no obligation with respect to other cases involving children placed at the same agency” (Opinion 16-28).  We advised that disclosure is not mandated “[i]f the judge is satisfied the agency has an effective procedure in place to insulate the judge’s relative from any cases that may come before the judge” (id.).

          The judge’s obligations may be broader where a relative “holds a high-level supervisory position in a governmental office . . . though the results vary depending on the relative’s role, visibility, and overall level in the agency” (Opinion 19-150 [quotation omitted]).  Thus, for example, we have advised that a judge presiding in a drug treatment court may not sentence drug court participants to a program “supervised by someone who resides with and is involved in a committed personal relationship with the judge” (Opinion 04-101).  Likewise, an acting Family Court judge “should disqualify him/herself in those cases in which caseworkers of the local Department of Family Services who are supervised by the judge’s spouse had any involvement, but such disqualification is subject to remittal” (Opinion 98-138).

          Here, although the judge’s relative is a member of the executive team, he/she does not have supervisory responsibilities over the not-for-profit service provider’s supervised visitation program to which the inquiring judge makes direct referrals.  Accordingly, the judge may refer cases to the entity’s supervised visitation program so long as the judge is satisfied that his/her relative will not be assigned to work on the referred cases and the judge discloses the relative’s employment with the entity (see Opinions 24-133; 12-163).