Opinion 25-86

June 26, 2025

Digest: A family court judge may not ethically delegate authority to their court attorney to hear custody, visitation, guardianship and/or family offense cases for return of process and joinder of issue determination.

Rules: 22 NYCRR 100.2; 100.2(A); 100.3(B)(7); 100.3(C)(1); 100.3(C)(2); Opinions 18-04(B); 15-127; 09-211; 89-142.

Opinion:

A family court judge with supervisory or administrative authority asks if it is ethically permissible for family court judges to delegate authority to their court attorneys to hear custody, visitation, guardianship, and family offense cases for return of process and joinder of issue determination. More specifically, the judge asks if they may delegate authority to their court attorneys to do any of the following things:

1. Join issue (a) on the consent of a respondent who appears; (b) after reviewing an affidavit of service, regardless of whether the respondent appears; and (c) over the objection of the respondent.

2. Allocute a petitioner on the withdrawal of a family offense petition and subsequently dismiss the petition.

3. Dismiss a petition without prejudice for the petitioner’s failure to appear.

4. Issue an order for alternative service.

We understand that in family court, “return of process” refers to the act of formally proving that the summons and petition in the case were properly served upon the respondent, usually by the presentation of an affidavit of service. The act of “joining issue” is a finding that the case is ready for the court to proceed to hear evidence, consider arguments and ultimately render a determination.

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]). A judge must “respect and comply with the law” (id.). Further, a judge must dispose of all judicial matters promptly, efficiently and fairly (see 22 NYCRR 100.3[B][7]); must diligently discharge their administrative duties, maintain professional competence in judicial administration, and cooperate with other judges and court officials in the administration of court business (see 22 NYCRR 100.3[C][1]); and must require staff, court officials and others subject to the judge’s direction and control to observe standards of fidelity and diligence that apply to the judge (see 22 NYCRR 100.3[C][2]).

A judge may delegate “ministerial functions” to staff, but must not delegate their adjudicative responsibilities unless authorized by law (see e.g. Opinions 18-04[B]; 15-189; 15-127; 89-142). Thus, we advised in Opinion 15-127 (internal citations omitted):

The Committee has distinguished between “ministerial functions,” which may be delegated, and “judicial functions,” which are nondelegable. Applying these principles, the Committee has advised that a judge must “personally sign all documents which require the judge’s signature and which involve an element of judicial discretion, and should not delegate that function to the court clerk.” The Committee has advised that a judge may delegate the function of researching whether a litigant’s address is located within a particular geographic boundary, but not the determination of whether filed papers may be refused or dismissed on jurisdictional grounds; a judge may delegate the function of counting posted cash for bail, but not the determination of whether the bond provides adequate protection that a defendant will return to court; and a judge may authorize his/her law clerk to conduct conferences and to share with the parties the law clerk’s view about the case and the issues involved, but the law clerk must make clear that the judge will make his/her own independent judicial decision regardless of the law clerk’s views.

As discussed in detail below, the list of tasks proposed to be delegated to court attorneys in family court are beyond mechanical or routine “ministerial functions.” Rather, they involve “judicial functions,” i.e. the exercise of judgment and the application of law to certain facts.

1. Joinder of Issue

We turn first to the inquirer’s question about delegating the act of joining issue to a court attorney in specified circumstances.

(a) Join Issue on the Consent of a Respondent Who Appears

While a respondent can consent to joinder of issue, the judge must exercise their judgment to ensure that the consent is valid and made without undue influence or coercion, and further, the judge must ensure that the respondent’s appearance in court and acknowledgement of the petition constitutes a valid joining of issue.

(b) Join Issue After Reviewing an Affidavit of Service

If respondent fails to appear, the judge must determine whether there was proper service before declaring a default judgment. The judge must exercise discretion and apply legal principles to determine the appropriate course of action when a party fails to appear.

The decision to join issue over the objection of the respondent involves the exercise of judgment and the application of the law to specific facts and is thus a judicial act.

In our view, it would be ethically impermissible for a judge to delegate the responsibility of joining issue because the act of joining issue is considered a “judicial function,” as it marks the formal entry into the legal process and signifies the case is ready for adjudication. It requires a legal determination as to whether the respondent has appeared or whether the respondent has defaulted in failing to appear.

Thus, we conclude in each instance that a judge may not delegate the authority to join issue in a family court proceeding to their court attorney. The judge must retain adjudicative responsibility and ensure that the court attorney does not appear to be usurping the judge’s authority (see 22 NYCRR 100.2; 100.2[A]; 100.3[C][2]; Opinion 09-211).

2. Allocute a Petitioner on Withdrawal of Family Offense Petition

We next turn to the question about delegating authority to allocute a petitioner on the withdrawal of a family offense petition and subsequently dismiss the petition. Allocution is the formal act whereby a judge questions the petitioner about the reason for withdrawing the petition to ascertain if the withdrawal is voluntary and free from coercion or undue influence and to ensure the petitioner understands the implications of withdrawal. The decision to grant or deny the withdrawal is in the discretion of the judge, who must consider factors such as the safety and well-being of the petitioner; potential for future harm or reoccurrence of the family offense; the petitioner’s understanding of the consequences of withdrawal, including the dismissal of any temporary orders of protection; and the presence of any coercion or undue influence in the decision to withdraw.

The judge’s role to deny or grant withdrawal of a petition requires judicial discretion based on the specific facts and circumstances of each case. Thus, we conclude that the judge may not delegate to their court attorney the authority to allocute a petitioner to withdraw a family offense petition and subsequently dismiss the petition.

3. Dismiss a Petition for Failure to Appear

The judge asks if the court attorney may dismiss a petition without prejudice for a petitioner’s failure to appear.

The decision to dismiss a petition requires the judge to consider the reasons for non-appearance, the rules of the court, and the overall circumstances of the case. This process is not purely ministerial, as it involves judgment and discretion, which are characteristics of judicial functions. Accordingly, the judge may not delegate the authority to dismiss a petition without prejudice for a petitioner’s failure to appear.

4. Issue an Order for Alternative Service

Finally, the judge asks if the court attorney may issue an order for alternative service.

The decision to order alternative service is a judicial function that requires the judge to exercise discretion and direct a means of service based upon the specific facts and circumstances of each case. Thus, the judge may not delegate the decision to order alternative service to the court attorney.