On May 13, 2011, Giles "C." filed a petition under Article 6 of the Family Court Act against Janet "L." claiming that the parties are the parents of Aimee "L." (d/o/b x/xx/xxxx) and seeking custody of the subject child.

On May 20, 2011, Ms. "L." filed an application alleging that she was unable to afford an attorney and requesting that the Court assign an attorney to represent her that would be paid by the county pursuant to County Law § 722.

Based upon the documentation presented in support of her application, the Court finds that Ms. "L." is herself a minor; and that Ms. "L." and the subject child reside with Ms. "L."'s parents. Ms. "L." and the subject child are listed on Ms. "L."'s parents' 2010 tax returns as dependants. Ms. "L." does not herself have the financial resources to hire an attorney. Ms. "L."'s parents do have the financial resources to hire an attorney. Thus, the question presented to the Court is whether a minor, who is listed as a dependant on her parents' tax returns, is entitled to a free attorney pursuant to FCA § 262(a)(v), when the minor is financially unable to retain counsel, but when her parents are financially able to retain counsel ^[FN1].

Parents are legally obligated to pay for necessities required by an unemancipated minor. see, Thomas B. v Lydia D., 69 AD3d 24, 886 NYS2d 22 [1 Dept 2009] and Plovnick v Klinger, 10 AD3d 84, 781 NYS2d 360 [2 Dept 2004]. Many items have been categorized as necessities that parents are obligated to provide to their unemancipated minor, including the services of an [*2]attorney when the minor is an indigent litigant who has a right to a free attorney in a specific proceeding. see, Folder v Mohr, 39 NY2d 1002, 387 NYS2d 241 [1976]; Plovnick v Klinger, 10 AD3d 84, 781 NYS2d 360 [2 Dept 2004]; People v Kearns, 189 Misc 2d 283, 730 NYS2d 679 [Sup Ct, Queens County 2001]; People v Clemson, 149 Misc 2d 868, 567 NYS2d 591 [Just Ct, Village of Newark, Wayne County 1991]; and Matter of Cheri H., 121 Misc 2d 973, 469 NYS2d 551 [Family Ct, Bronx County 1983]. All indigent litigants in a custody proceeding have the right to be represented by an attorney paid by the taxpayers and therefore, free of charge to the litigant. FCA § 262(a)(v); see, Edwards v Cade, 33 AD3d 1087, 823 NYS2d 225 [3 Dept 2006]; Mooney v Mooney 243 AD2d 840, 663 NYS2d 676 [3 Dept 1997]; and De Vivo v Burrell, 101 AD2d 607, 474 NYS2d 860 [3 Dept 1984]. Accordingly, the Court concludes that Ms. "L."'s parents are legally obligated to provide competent counsel in this proceeding to their daughter, Ms. "L.".

Notwithstanding that conclusion, the Court does not have jurisdiction over Ms. "L."'s parents and therefore cannot compel them to fulfill their legal obligation to provide an attorney for their daughter. People v Clemson, 149 Misc 2d 868, 567 NYS2d 591 [Just Ct, Village of Newark, Wayne County 1991]; and People v Kearns, 189 Misc 2d 283, 730 NYS2d 679 [Sup Ct, Queens County 2001]. The Court has no information as to whether or not Ms. "L." has made any requests to her parents regarding an attorney and no information regarding Ms. "L."'s parents' position regarding this issue.

Accordingly, if Ms. "L." wishes to pursue her pending application for assigned counsel, Ms. "L." must provide an affidavit indicating that she has requested her mother and father provide her with an attorney for this action and both parents have refused. If Ms. "L." does not file such an affidavit within seven days of the date of this order, the assigned counsel application will be denied without prejudice.

In the event that Ms. "L." does file such an affidavit in a timely manner, Ms. "L."'s application shall be granted and a copy of this decision shall be forwarded to the County. What, if any, action the County elects to commence against Ms. "L."'s parents for reimbursement of their costs shall be left to the discretion of the County.

SO ORDERED

Signed and Dated:Plattsburgh, New York

June ____, 2011

E N T E R

Hon. Timothy J. Lawliss

Family Court Judge