As set forth herein, the Court has appointed a guardian ad litem for Defendant, appointed pro bono counsel for Plaintiff, awarded Plaintiff interim custody of the parties' unemancipated child, directed Defendant to have no access to or communication with the child pending further Court order and has stayed this action until Defendant can meaningfully participate in this action.

This matrimonial action was commenced with the filing by Plaintiff of a summons with notice (hereinafter "Summons")^[FN1] on August 5, 2025. On August 19, 2025, a complaint ^[FN2] was filed by Plaintiff asserting that the parties have one child of the marriage being C.V. (D.O.B.: X/XX/XXXX) (hereinafter "Child").

Simultaneously filed, was a proposed judgment of divorce ^[FN3] proposed findings of fact and [*2]conclusions of law ^[FN4] a note of issue, specifying this matter as an uncontested divorce ^[FN5] as well as additional divorce documents.^[FN6] While affidavits ^[FN7] were asserted to have been executed by both parties regarding consent to the proposed Judgment of Divorce, including reference to a custody stipulation annexed to the support worksheets ^[FN8] it is unclear at this time to the Court whether all ancillary issues arising out of the parties' marriage have been resolved. As a result, the Court entered an order ^[FN9] and scheduled a preliminary conference to be held on September 11, 2025, at 9:00 a.m.

On September 11, 2025, a conference was held wherein Plaintiff appeared as a self-represented litigant and Defendant failed to appear. Plaintiff requested the appointment of counsel and advised the Court that Defendant had been kidnapped by a drug cartel in the country of Mexico with his current whereabouts unknown. Following an assertion made to the Court that Defendant is a registered sex offender, Plaintiff made an application for interim sole legal and physical custody of the Child and that Defendant be prohibited from access to or communications with the Child.

1. Appointment of Counsel for Plaintiff.

Following Plaintiff's appearance as a pro se litigant, this Court advised Plaintiff of her right to proceed without counsel, to retain counsel, or seek the appointment of counsel. Plaintiff requested the appointment of counsel and after inquiry, advised the Court that her approximate annual income is $30,000.00.

Pursuant to New York State Family Court Act § 262, indigent parties involved in a custody proceeding before the New York State Family Court may receive assigned counsel, which has been recognized to extend to custody issues in dispute within a matrimonial action commenced before the New York State Supreme Court (Herbert L. v. Maria L., 32 Misc 3d 1217(a) [Sup. Ct. Westchester Cnty 2011]; see also, 22 NYCRR § 678.11, "Assignment of counsel by the Family Court, Supreme Court or Surrogate's Court to represent indigent adults in proceedings pursuant to section 262 of the Family Court Act, shall be made from law guardian panels designated pursuant to Part 679 of this Title (the rules of the Appellate Division, Second Department). Attorneys so assigned shall be subject to those court rules including the rules relating to evaluation and removal.")

In addition to the utilization of the assigned counsel panel promulgated by the Second Department, pro bono counsel may be appointed to represent indigent litigants involved in [*3]matrimonial actions (Y.H. v. E.S., 76 Misc 3d 398 [Sup. Ct. Putnam Cnty 2022]; see also, New York State Civil Practice Law and Rules (hereinafter "CPLR") § 1102(a); New York State County Law § 722; and New York State Judiciary Law § 35).

Based upon the submissions made to this Court and oral argument received at the conference, this Court determines Plaintiff to be an indigent party, and hereby assigns, as pro bono counsel for Plaintiff, Donna Genovese, Esq., who appeared virtually in Court at a second call of the case. Attorney Genovese confirmed she had no conflicts and that she would accept the appointment. To effectuate this determination, a separate Order of Appointment of Pro Bono Counsel shall be entered by the Court simultaneously with the entry of this Order.

2. Appointment of Guardian Ad Litem for Defendant.

Several vehicles exist under New York State Law to protect litigants who are either impaired or incapacitated. Pursuant to CPLR § 1202, a court may, on motion or sua sponte, appoint a GAL for a litigant:

"(a) By whom motion made. The court in which an action is triable may appoint a guardian ad litem at any stage in the action upon its own initiative or upon the motion of:

1. an infant party if he is more than fourteen years of age; or

2. a relative, friend or a guardian, committee of the property, or conservator; or

3. any other party to the action if a motion has not been made under paragraph one or two within ten days after completion of service.

(b) Notice of motion. Notice of a motion for appointment of a guardian ad litem for a person shall be served upon the guardian of his property, upon his committee or upon his conservator, or if he has no such guardian, committee, or conservator, upon the person with whom he resides. Notice shall also be served upon the person who would be represented if he is more than fourteen years of age and has not been judicially declared to be incompetent.

(c) Consent. No order appointing a guardian ad litem shall be effective until a written consent of the proposed guardian has been submitted to the court together with an affidavit stating facts showing his ability to answer for any damage sustained by his negligence or misconduct."

While a guardian appointed under Article 81 of the New York State Mental Hygiene Law is appointed with a delineated scope of authority to made decisions for an individual determined by the court to be an incapacitated person, or person in need of a guardian for their personal and/or property management needs, a GAL is not appointed as a decision-maker. Instead, a GAL is situated to provide assistance to the subject individual who will make their own decisions in the litigation, with the assistance of the GAL to ensure that the individuals' rights are protected:

"Petitioner also argues that 1234 Broadway LLC v Feng Chai Lin (25 Misc 3d 476 [Civ Ct, NY County 2009]) stands for the proposition that the appointment of a guardian ad litem does not take away the autonomy of the ward, such that petitioner *221 was free to negotiate an agreement with respondent in the absence of the GAL. However, 1234 Broadway LLC (25 Misc 3d at 476) essentially stands for the proposition that a guardian ad litem cannot defy the wishes of their ward.* An attempt to leverage a ward's autonomy as such to support a proposition that an adversary may effectively ignore a finding of a court that a litigant is incapable of protecting their interest is a bad-faith [*4]perversion of the holding. For the same reason, petitioner's assertion that respondent is the party who initiated negotiations to settle the matter with a surrender is irrelevant. The appropriate response to a settlement overture from an adversary represented by a guardian ad litem in the litigation is to politely decline and notify the guardian of the exchange" (276-W71 LLC v. G.S., 80 Misc 3d 216 [Civ. Ct., NY County 2023]; see also, 1234 Broadway LLC v. Feng Chai Lin, 25 Misc 3d 476 [Civ. Ct., NY County 2009]).

The appointment of a GAL for a litigant has been held appropriate when a trial court has determined the individual to be in an "apparently chronic irrational and agitated state" resulting in the individual's inability to effectively litigate their case without assistance (Anonymous v. Anonymous, 256 AD2d 90 [1st Dept 1998]).

In reversing a decision of the Family Court which terminated the parental rights of the petitioner, the trial court was found to have erred in failing to appoint a GAL despite it having become apparent the litigant was incapable of assisting in her defense:

"It is well settled that courts cannot "shut their eyes to the special need of protection of a litigant actually incompetent but not yet judicially declared such. There is a duty on the courts to protect such litigants" (Sengstack v. Sengstack, 4 NY2d 502, 509, 176 N.Y.S.2d 337, 151 N.E.2d 887 [1958]). Indeed, "[t]he public policy of this State ... is one of rigorous protection of the rights of the mentally infirm" (Vinokur v. Balzaretti, 62 AD2d 990, 990, 403 N.Y.S.2d 316 [2d Dept. 1978]). Thus, " 'where there is a question of fact ... whether a guardian ad litem should be appointed, a hearing must be conducted' " (Resmae Mtge. Corp. v. Jenkins, 115 AD3d 926, 927, 983 N.Y.S.2d 64 [2d Dept. 2014] [emphasis added]; see Matter of Mary H. [Sanders—Spencer], 126 AD3d 794, 795, 5 N.Y.S.3d 270 [2d Dept. 2015]), and the failure to make such an inquiry once a meritorious question of a litigant's competence has been raised requires remittal (see Matter of Foreclosure of Tax Liens by the City of Ithaca, 283 AD2d 703, 705, 724 N.Y.S.2d 211 [3d Dept. 2001] )" (see, Matter of Jesten J.F., 167 AD3d 1527 [4th Dept 2018]; see also, Cowell v. Dickoff, 60 AD3d 716 [2d Dept 2009] "The order granting the defendant's motion to dismiss the action should have been vacated in the furtherance of justice because the plaintiff submitted evidence that he was incapable of adequately prosecuting the action and no inquiry was held as to the possible need for the appointment of a guardian ad litem for him").

In the event issues of fact arise in connection with the potential appointment of a GAL, the Court must conduct a hearing (see, Piggot v. Lifespire, 149 AD3d 785 [2d Dept 2017]); see also, Shad v. Shad, 167 AD2d 532 [2d Dept. 1990]). If such a hearing is held, the Court must find by a preponderance of the evidence that the subject individual requires the appointment of a GAL due to the individual's inability understand the litigation, defend their rights and to the extent that they have counsel assist that counsel (see, New York Life Ins. Co., v. V.K., 184 Misc 2d 727 [NY Civ. Ct. 1999]; see also, In re Philip R., 293 AD2d 547 [2d Dept 2002]).

In the instance when a GAL is deemed appropriate, the appointment of a GAL is not effectuated until the appointed individual files a GAL consent to appointment and a GAL financial disclosure statement (see, In re Bush, 36 Misc 3d 51 [App. Term, 2d Dept, 11th and 13th Judicial Districts 2012]). The GAL financial disclosure statement must be sufficiently detailed to meet the statutory objective of confirming that the GAL has the financial means to [*5]answer for any damages caused by their negligence or misconduct in carrying out their duties as GAL (see, In re Smith-Guzman, 11 Misc 3d 1092(A) [Sup. Ct. Kings Cnty 2006]; see also, Application of Weingarten, 91 Misc 2d 788 [NY Civ. Ct. 1978]).

The manner within which a GAL may be compensated for services rendered as GAL, during the course of litigation or upon the completion thereof, is set forth in CPLR § 1204:

"A court may allow a guardian ad litem a reasonable compensation for his services to be paid in whole or part by any other party or from any recovery had on behalf of the person whom such guardian represents or from such person's other property. No order allowing compensation shall be made except on an affidavit of the guardian or his attorney showing the services rendered."

Here, Plaintiff commenced this action with the filing of the Complaint seeking the entry of a judgment of divorce in an uncontested matter, without the filing of a stipulation of settlement resolving the issues arising out of the requested dissolution of the parties' marriage. This left all issues, including custody of the Child, unresolved and necessitating further Court intervention by facilitating a discovery schedule to permit the parties to proceed to trial so that the Court could then enter a decision on those issues, or to permit the parties to place a settlement of those issues on the record. Accordingly, the Court directed the parties to appear at a preliminary conference to proceed with this case and Plaintiff advised the Court that Defendant had two days prior to the appearance been abducted by a drug cartel in the country of Mexico.

Due to the Defendant's alleged kidnapping preventing his appearance in this action, this Court determines that no issues of fact exist which would necessitate a hearing and that Defendant is determined to be an individual unable to effectively litigate their case without assistance, necessitating the appointment of a guardian ad litem and hereby appoints as guardian ad litem for Defendant, Gregory Salant, Esq. To effectuate this determination, a separate order of appointment of guardian ad litem shall be entered by the Court simultaneously with the entry of this Order, requiring by a date certain, attorney Salant to file a consent of guardian a litem and financial disclosure of guardian ad litem.

3. Appointment of Attorney for the Child.

When evaluating issues of custody, trial courts have the discretion to determine if the appointment of an attorney for the subject child or children is warranted (Betts v. Betts, 51 AD3d 699 [2d Dept 2008]). Due to the allegations that Defendant is a registered sex offender and thus is a danger to the Child, the Court determines that the appointment of an attorney for the Child is necessary to afford the Child a voice and representation in this action. Therefore, Leora T. Wexler, Esq., is hereby appointed as attorney for the Child. To effectuate this determination, a separate order of appointment of attorney for the Child shall be entered by the Court simultaneously with the entry of this Order.

4. Award of Interim Custody.

"The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" (Burke v. Squires, 202 AD3d 784 [2d Dept 2022]).

"Where possible, custody should be established on a long-term basis, 'at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian' " (Jackson v. Jackson, 31 AD3d 386 [2d Dept 2006], quoting, Obey v. Degling, 37 NY2d 768 [1975]).

"Factors to be considered include the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Hogan v. Hogan, 159 AD3d 679 [2d Dept 2018]).

"Entrusting the custody of young children to their parents jointly, especially where the shared responsibility and control includes alternating physical custody, is insupportable when parents are severely antagonistic and embattled" (Braiman v. Braiman, 407 N.Y.S.2d 449 [1978]).

"Moreover, pursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interests of the child along with all the other relevant factors when the allegations of domestic violence are proven by a preponderance of the evidence" (Scott v. Thompson, 166 AD3d 627 [2d Dept 2018]).

Absent evidence of an emergency situation, prior to making a custody determination, even on an interim basis, the Court is required to hold a hearing (Rodger W. v. Samantha S., 95 AD3d 743 [1st Dept 2012]; Lela G. v. Shoshanah B., 151 AD3d 593 [1st Dept 2017]).

Plaintiff made an application for sole legal and physical custody of the Child, suspending all access of Defendant with the Child until further order of the Court. The guardian ad litem of Plaintiff took no position, nor did the attorney for the Child who noted that she has yet to meet with the Child as she was just appointed.

Here, the Court determines that an emergency situation exists arising out of the allegations made by Plaintiff asserting that Defendant is a registered sex offender and possibly presents a danger to the Child, in addition to Plaintiff's claim that Defendant has been abducted in the country of Mexico leaving her as the sole parent to care for the Child in the absence of Defendant. Accordingly, the Court hereby grants Plaintiff interim sole legal and physical custody of the Child, with Defendant having no access to or communication with the Child prior to further Court order.

5. Imposition of Stay.

Pursuant to CPLR § 2201, "Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just." "A court, pursuant to CPLR 2201, may sua sponte grant a stay of proceedings in an action that is pending before it" (Halloran v. Halloran, 161 AD2d 562 [2d Dept 1990]; see also Sternberg v. New York Water Service Corporation, 94 AD2d 723 [2d Dept 1983]). "It is well settled that a court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources" (Zonghetti v. Jeromack, 150 AD2d 561 [2d Dept 1989]). When evaluating if a stay is appropriate, a Court must determine if the discernable benefits that a stay would afford are outweighed by any prejudice that would result due to delay of the litigation.

Here, based upon review of the submissions made and oral argument received at the conference, the Court determines that a stay is warranted to remain in effect until further order of this Court. In evaluating the equities associated with this action, the Court determined that the benefits that such a stay would afford the parties and Child far outweighed any possible negative impacts that delays would cause. As noted herein, Plaintiff has been granted interim legal and [*6]physical custody of the Child, thus there is no immediate need for this action to proceed pertaining to issues regarding the Child, and a stay would provide the Court with the opportunity to have both parties meaningfully participate in this action prior to making an ultimate custody determination which would serve the best interests of the Child. While this stay remains in effect, Plaintiff's guardian ad litem shall file monthly status reports to the Court, copied to all counsel, providing updates regarding Defendant's whereabouts and ability to proceed in this action.

1. The following is hereby appointed as pro bono counsel for Plaintiff: Donna Genovese, Esq., 81 Main Street, Suite 405, White Plains, New York 10601, 914-681-6006, [email protected], pursuant to a separate order of appointment to be entered simultaneous with this Order.

2. The following is hereby appointed as guardian ad litem for Defendant: Gregory A. Salant, Esq., 81 Main Street, Suite 205, White Plains, New York 10601, 914-683-2500, [email protected], pursuant to a separate order of appointment to be entered simultaneous with this Order.

3. The following is hereby appointed as attorney for the Child: Leora T. Wexler, Esq., 933 Mamaroneck Avenue, Suite 204, Mamaroneck, New York 10543, 914-835-1600, [email protected], pursuant to a separate order of appointment to be entered simultaneous with this Order.

4. The Plaintiff is hereby granted, on an interim basis subject to future Court order, sole legal and physical custody of the Child.

5. That Defendant, on an interim basis subject to future Court order, shall have no access to or communication with the Child.

6. That this action is hereby stayed until further Court order.

7. That by September 30, 2025, Plaintiff's guardian ad litem shall file a status report pertaining to the whereabouts of Defendant and Defendant's ability to meaningfully participate in this action; and shall subsequently file every thirty days thereafter such reports with copies served upon opposing counsel.

8. The attorney for the Child shall order a copy of the Court transcript, pay the cost of same from the office of assigned counsel and file same to be so-ordered by October 11, 2025.