Supreme Court, Westchester County

Decided on April 14, 2026

Index No. XXXXX

James L. Hyer, J.

[*1]

The following papers were considered in connection with the attorney for the child's motion by order to show cause (hereinafter "Motion Sequence No. 13"), dated March 16, 2026, seeking the entry of an Order:

1. Relieving [Redacted] as attorney for the child for S. R., daughter of the parties, date of birth [Redacted]; and

2. For other and further relief as may be just, proper and equitable.

PAPERS DOC. NO.

Order to Show Cause/Attorney Affirmation in Support/Memorandum of Law/Exhibits A-F 1-9

Relevant Factual and Procedural History

The parties were married in 2022, and during the course of their marriage had two children being: (1) [Redacted] (D.O.B.: [Redacted]) (hereinafter "E. R."); and (2) [Redacted] (D.O.B.: [Redacted]) (hereinafter "S. R.") (hereinafter collectively the "Children").

On June 3, 2022, Plaintiff commenced a family offense proceeding in the New York State Family Court, Westchester County, known as [Redacted], under file number [Redacted] [*2]and docket number [Redacted], (hereinafter "Family Court Proceeding"). Plaintiff's petition^FN1 in that proceeding asserted that Defendant had, against her and/or S. R., engaged in disorderly conduct, harassment in the first or second degree, and assault in the second or third degree, asserting the following:

"On May 30, 2022 my husband, R. S., came to my home to spend time with the kids. After dinner I asked him to leave but he did not leave. He tried to hug me and I told him no. He continued to pursue me and pinned me down on the bed. He twisted my arms and legs. My adult daughter saw what was happening and asked my husband to let go of me but he would not. He accused me of dancing with other males at a marriage ceremony I attended on May 22, 2022. I called the Yorktown Police Department and when the police officers arrived they told my husband to leave and he did. Prior incidents of my husband's behavior towards me happened in August 2020 when I wanted to take my children to a family event and he would not allow me to leave. He threatened me and I called the police. Also, on July 5, 2021 while at a family gathering my husband held me down and prevented me from breathing by holding me tight. In addition my husband has destroyed property and threatened me. I moved out of the marital residence on 2/20/2021 as a result of my husband's behavior towards me. I filed for divorce in March 2021 but I withdrew it in April 2021 however I am starting the divorce process again. I seek the Court's assistance in obtaining an Order of Protection. I am requesting that the Court order that R. S. REFRAIN from assaulting, harassing, intimidating, threatening, menacing or stalking me and my daughter, S. R.."

Following being assigned to preside over the Family Court Proceeding, the Hon. Nilda Morales Horowitz, J.F.C., entered a temporary order of protection,^FN2 to remain in effect until June 8, 2022, directing that Defendant stay away from Plaintiff's person, home and place of employment; refrain from any communication with Plaintiff except by text or e-mail pertaining to the Children; and refrain from any conduct that would constitute a family offense against Plaintiff and S. R. (hereinafter "Temporary Order of Protection").

On June 6, 2022, this matrimonial action was commenced by Plaintiff with the filing of a summons and complaint (hereinafter collectively "Complaint"),^FN3 which sought the dissolution of the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7) based upon the alleged irretrievable breakdown of the parties' relationship, and seeking ancillary relief including an award of custody of the unemancipated child of the marriage, being S. R..

On June 8, 2022, Judge Morales Horowitz entered a second temporary order of protection, inclusive of the same directives set forth in the Temporary Order of Protection,^FN4 to [*3]remain in effect until August 26, 2022; and Plaintiff's counsel filed a request for judicial intervention in this action,^FN5 after which the Hon. Thomas Quinones, J.S.C., was assigned to preside.

On June 15, 2022, with the assistance of counsel, Defendant filed an answer to the Complaint (hereinafter "Answer"), wherein he also sought a dissolution of the parties' marriage and an award of custody of S. R.^FN6

On August 2, 2022, all parties and counsel appeared at a preliminary conference followed by the entry of an Order confirming that custody remained unresolved and noting that an attorney for the S. R. would be appointed with the parties to share equally in the payment of any fees to the appointed counsel.^FN7

This Court consolidated the Family Court Proceeding with this action,^FN8 and on August 2, 2022, entered a temporary order of protection with the same terms as set forth in the Temporary Order of Protection, to remain in effect until October 17, 2022.^FN9

On September 9, 2022, Plaintiff's counsel filed a letter^FN10 to this Court regarding the selection of an attorney for the child providing the following:

"I am counsel to the plaintiff wife, S. S., in the above referenced action. Counsel [Redacted] represents the defendant, R. S. At the Preliminary Conference and return date to defendant's Order to Show Cause, discussion was had regarding the appointment of an Attorney for the Child (AFC) for S. R., age 12 born on [Redacted]. I provide a list of suggested Attorney's for the Child for the Court's consideration. Unfortunately, counsel have not been able to agree on the AFC. The names suggested by [Redacted] were not acceptable for various reasons. S. S. would accept any one of the following Attorneys for the parties' daughter S. R.: 1. [Redacted], 2. [Redacted], 3. [Redacted], 4. [Redacted], 5. [Redacted]. [Redacted], 6. [Redacted], 7. [Redacted], 8. [Redacted], 9. [Redacted], 10. [Redacted]. I thank the Court in advance for its attention to the appointment of an attorney for the subject child S. R. The parties' older daughter is emancipated for custody purposes."

That same day, Defendant's then counsel filed a letter^FN11 to this Court pertaining to the appointment of an attorney for the child, setting forth the following position:

"Our office represents, Defendant, R. S. ("Defendant"), in the above referenced matter. [*4]This letter is being submitted in response to the letter filed by counsel for Plaintiff, S. S. ("Plaintiff"), seeking appointment of an Attorney for the Child for the parties' minor child, S. R.. On August 2, 2022, [Redacted] reached out to me and provided three names for potential AFCs: [Redacted], [Redacted], and [Redacted], at that time, I objected to [Redacted]. I provided [Redacted] with the names of two AFCs: [Redacted], and [Redacted]. In response, [Redacted] objected claiming a conflict without providing any legal basis for her claim. See Emails Exchanges Between Counsel annexed hereto. Defendant requests that the Court reject Plaintiff's choices for the AFC and ether appoint [Redacted], or another AFC as selected by the Court."

On September 20, 2022, this Court entered an order^FN12 appointing [Redacted], as attorney for the child S. R. (hereinafter "AFC [Redacted]"), notably being an attorney that neither party requested be appointed, with her fee to be paid equally by the parties, wherein it was directed that the parties would cooperate with AFC [Redacted], and directing AFC [Redacted]how she would proceed with her appointment:

"5. ORDERED that:

a. counsel for the parties shall immediately contact the Attorney for the Child(ren Child(ren) to schedule the interview(s) of the child(ren) with the Attorney for the Child(ren) outside the presence of the parties and their counsel;

b. the parties shall make themselves, the child(ren), and anyone living in either party's household, available for interviews with the Attorney for the Child(ren) (counsel for the parties may be present at any interview between the Attorney for the Child[ren] and counsel's client, or the party may, upon written consent of his/her counsel, waive counsel's presence);

c. each party, on written consent of his/her counsel, may schedule interviews with the Attorney for the Child(ren), with or without his/her counsel present, to discuss all issues relevant to custody and visitation (the sequence and frequency of such interviews shall be at the sole discretion of the Attorney for the Child[ren]);

d. the parties and counsel shall cooperate with the Attorney for the Child(ren) in providing any documents, papers or information requested, including executing releases permitting the Attorney for the Child(ren) to speak with, or receive information from, any mental health professionals, social service workers or agencies, physicians, schools, or other persons or entities having material and necessary information regarding the parties or the child(ren);

e. the parties shall provide reasonable, private, and unhampered access by the child(ren) to the Attorney for the Child(ren), including contact in person or by phone, fax, e-mail, or regular mail; and it is further

6. ORDERED that the Attorney for the Child(ren) shall diligently advocate the children's position, which shall be ascertained pursuant to consultation with and advisement to the child(ren) to the extent and in a manner consistent with the child(ren)'s capacities, and a thorough knowledge of the child(ren)'s circumstances; and it is further

7. ORDERED that if the child(ren) is/are capable of knowing, voluntary and considered judgment, the Attorney for the Child(ren) should be directed by the wishes of the child(ren), even if the Attorney for the Child(ren) believes that what the child(ren) want(s) is not in the child(ren)'s best interest. The Attorney for the Child(ren) shall explain fully to the child(ren) the available options, and may recommend to the child(ren) a course of action that in the Attorney for the Child(ren)'s view would best promote the child(ren)'s interests; and it is further

8. ORDERED that, if the Attorney for the Child(ren) is convinced either that the child(ren) lack(s) the capacity of knowing, voluntary and considered judgment, or that following the child(ren)'s wishes is likely to result in a risk of physical or emotional harm, the Attorney for the Child(ren) shall take a position that is contrary to the child(ren)'s wishes, as well as the reasons for the finding that the child(ren) lack(s) the capacity of knowing, voluntary and considered judgment, if such is the case; and it is further

9. ORDERED that under these special circumstances, the Attorney for the Child(ren) shall report the child(ren)'s articulated wishes to the Court upon instruction from the child(ren) to do so, notwithstanding the Attorney for the Child(ren)'s position; and it is further

10. ORDERED that under these special circumstances. the Attorney for the Child(ren) must articulate to the Court the reasons for asserting a position contrary to that of the child(ren), as well as the reasons for the finding that the child(ren) lack(s) the capacity of knowing, voluntary and considered judgment, if such is the case; and it is further"

On March 10, 2023, a Parenting Agreement was so ordered, setting forth a complete resolution of all custody and access issues pertaining to S. R., (hereinafter "Parenting Agreement"), wherein the parties would have joint legal custody and Plaintiff would have physical custody subject to an access schedule of Defendant.^FN13

On March 14, 2023, the undersigned was assigned to preside over this action and all further judgments, decisions and orders entered have been by the undersigned unless indicated otherwise.

On May 12, 2023, both parties appeared with counsel and engaged in a settlement conference after which a resolution of all remaining issues arising out of the requested dissolution of the parties' marriage was reached and the terms were placed on the record after which the parties were subject to an allocution, whereafter such transcript was submitted to this Court and so-ordered (hereinafter "So Ordered Stipulation of Settlement").^FN14

On May 18, 2023, this Court entered an Order,^FN15 pertaining to a modification of an order of protection issued by the Yorktown Justice Court in favor of Plaintiff and against Defendant providing the following:

"Plaintiff, S. S. ("Plaintiff'), Defendant, R. S. ("Defendant"), and their respective counsels, having appeared before the Court for a Settlement Conference on May 8, 2023 and May 12, 2023; this matter having been settled on the record; the Court having learned that on May 2, 2023, Plaintiff was issued an Order of Protection by the Yorktown Justice Court, State of New York under Index/Docket No.: [Redacted], which is to remain in force until and including May 1, 2025, that provides that Defendant: (l) stay away from Plaintiff and/or from her home, school, business, place of employment, and other, except for contact, communication or access permitted by a subsequent order issued by a family or supreme court in a custody, visitation, or child abuse or neglect proceeding, (2) refrain from communications or any other contact by mail, telephone, e-mail, voicemail, or other electronic or any other means with Plaintiff except for contact, communication or access permitted by a subsequent order issued by a family or supreme court in a custody, visitation, or child abuse or neglect proceeding, (3) refrain from remotely controlling, monitoring or otherwise interfering with any electronic device or other object affecting the home, vehicle or property of the protected person(s) by connection through any means, including, but not limited to, the internet, Bluetooth, a wired or wireless network, or other wireless technology, and (4) refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against Plaintiff (the "Order of Protection"); the parties having entered a Parenting Agreement, which was So Ordered by the Court on March 10, 2023; the Court having directed that Defendant submit a proposed Order modifying the Order of Protection; and upon the request of Defendant, it is

ORDERED that the Order of Protection be modified to permit Defendant to communicate with Plaintiff with respect to matters relating to the children in writing via e-mail pursuant to the So-Ordered Parenting Agreement, filed on March 10, 2023, as NYSCEF #109; and it is further

ORDERED that the Order of Protection be modified to permit Defendant to attend the extracurricular activities of the parties' children, in which Plaintiff may also be in attendance, such as events, functions, competitions — whether sports related or academic, recitals, dances, proms, graduations, and the like, including the [Redacted], where the parties' minor child, S. R., is a participant; and is it further

ORDERED that the remainder of the Order of Protection shall remain in effect as ordered by the Yorktown Justice Court."

On August 23, 2023, the parties entered into a property transfer agreement wherein the parties modified the terms of the So Ordered Stipulation of Settlement pertaining to certain properties in the country of India, wherein Plaintiff agreed to transfer her interest in these properties to Defendant for agreed upon consideration (hereinafter "Property Transfer [*5]Agreement").^FN16

On October 24, 2023, a judgment of divorce was entered dissolving the parties' marriage pursuant to DRL § 170(7) and incorporating by reference but not merging, the Parenting Agreement, So Ordered Stipulation of Settlement and Property Transfer Agreement (hereinafter "Judgment of Divorce").^FN17 On that day, a notice of entry of the Judgment of Divorce with proof of service were filed.^FN18 Thereafter, the parties have engaged in substantial post-judgment litigation.

On March 10, 2025, this Court entered a decision and order after hearing (hereinafter "Decision & Order #1"),^FN19 which resolved after hearing a motion filed by Defendant (hereinafter "Motion Sequence No. 5"),^FN20 and a cross-motion filed by Plaintiff (hereinafter "Motion Sequence No. 6"),^FN21 being two post-judgment applications by Plaintiff and Defendant, respectively. The same day, a copy of this Court's Decision and Order #1 was filed with notice of entry (hereinafter "Order with Notice of Entry #1").^FN22

On July 3, 2025, this Court entered a decision and order (hereinafter "Decision and Order #2"),^FN23 which resolved a motion filed by Defendant, seeking modification of this Court's Decision and Order #1, and other ancillary relief (hereinafter "Motion Sequence No. 7").^FN24

On July 8, 2025, a copy of this Court's Decision and Order #2 was filed with notice of entry (hereinafter "Order with Notice of Entry #2").^FN25

On August 19, 2025, this Court entered a decision and order (hereinafter "Decision and Order #3"),^FN26 which resolved a motion filed by Defendant, seeking substantially similar relief as Motion Sequence No. 7, and other ancillary relief (hereinafter "Motion Sequence No. 9").^FN27

On August 20, 2025, a copy of this Court's Decision and Order #3 was filed with notice of entry (hereinafter "Order with Notice of Entry #3").^FN28

On September 19, 2025, a notice of appeal was filed by Defendant (hereinafter "Notice of Appeal"),^FN29 seeking to modify the Judgment of Divorce (entered on October 24, 2023, 696 days prior to Defendant's filing of the Notice of Appeal), and the decisions of this Court made in Decision and Order #1 (entered on March 11, 2025, 192 days prior to Defendant's filing of the Notice of Appeal); Decision and Order #2 (entered on July 8, 2025, 73 days prior to Defendant's filing of the Notice of Appeal); and, Decision and Order #3 (entered on August 20, 2025, 30 days prior to Defendant's filing of the Notice of Appeal).^FN30

On November 24, 2025, the Court received a letter from AFC [Redacted] (hereinafter "AFC Letter"),^FN31 requesting that she be re-appointed by this Court in the same role, limited to appearing as the attorney for the parties' minor child S. R., before the Appellate Division, Second Department, regarding the Notice of Appeal filed by Defendant (bearing Appellate Division, Second Department File Nos. [Redacted] and [Redacted]) (hereinafter "Defendant's Appeal"), and requesting fees and disbursements as follows: a retainer of $5,000, billed at $450.00 per hour, to be paid by the Defendant-Appellant in its entirety.

On the same date, Defendant filed a letter (hereinafter "Defendant's Response Letter"),^FN32 in opposition to AFC [Redacted]'s request, requesting that the Court decline such re-appointment of AFC [Redacted] for purposes of appearing for S. R. regarding the pending appeal.

On November 25, 2025, this Court issued an Order,^FN33 declining to re-appoint the AFC without a motion filed by order to show cause, outlining the full scope of the appointment requested including requested allocation of fees and disbursements; and, directing that AFC [Redacted] had permission of this Court to file such a motion without further need of a pre-motion conference.

On December 19, 2025, AFC [Redacted] filed Motion Sequence No. 11,^FN34 by order to show cause, seeking identical relief as set forth herein-above in Motion Sequence No. 12.

On January 5, 2026, a Decision and Order was entered by this Court,^FN35 denying without prejudice AFC [Redacted]'s application within Motion Sequence No. 11 on procedural grounds.

On January 26, 2026, AFC [Redacted] filed Motion Sequence No. 12,^FN36 by order to show cause, seeking the above-referenced relief.

On January 28, 2026, this Court conformed Motion Sequence No. 12 by Order,^FN37 and directed the following: (1) the AFC serve a copy of Motion Sequence No. 12 on Plaintiff and Defendant by Federal Express overnight delivery and e-mail by January 28, 2026; and, (2) that any answering submissions be filed by Plaintiff and Defendant by February 4, 2026, with no reply submission accepted, also being the return date for Motion Sequence No. 12.

In support of her application, AFC [Redacted] filed an affirmation^FN38 wherein she provided a summary of her representation of S. R. and her belief that the Defendant's continued litigation was frivolous in nature:

"During the time I represented the Child in this case, I zealously represented her wishes as a very intelligent, competent, well spoken teenager. She will turn 16 years old in April, 2026. My position on the Child's behalf was always consistent with her wishes and the parties entered into a Parenting Agreement which settled all issues regarding my client. The Child wants a relationship with her Father. Toward that end, she has worked in therapy with [Redacted], but it is my belief that the Father has not taken advantage of the opportunity to work with the Child in therapy. Given that position of the Child, there was no issue of parental alienation in the case. My very stable and competent client wants a relationship with her father, but she resists his ongoing, unreasonable and extreme efforts to control every aspect of her life. She is willing to work with her Father to make things better. That is where I left my client when relieved as AFC in March, 2025.

* * *

I am asking that Defendant Appellant R. S. be 100% responsible for any of my fees or disbursements because I believe his appeal is frivolous and without merit, and untimely and as such he should bear the burden of any fees involved in his pursuit of litigation. The issues raised in the motions filed by Defendant Appellant subsequent to my being relieved as AFC, are issues the Court had already addressed and disposed of, with no allegations of change in circumstances. In the Court's Decision dated August 19, 2025, the Court expressed concern about frivolous filings by Defendant. I believe if he continues to litigate issues already disposed of, he should be held responsible for fees incurred in the litigation which follows, either in Supreme Court or the Appellate Division."^FN39

On January 28, 2026, AFC [Redacted] filed an affirmation of service of her motion,^FN40 including copies of overnight tracking slips, confirming service of Motion Sequence No. 12 on both Plaintiff and Defendant as directed by the Court.

On January 28, 2026, Defendant filed opposition^FN41 to Motion Sequence No. 12, Plaintiff filed no answering submissions, and no further submissions were received with respect to the application.

On March 11, 2026, a decision and order,^FN42 was entered pertaining to Motion Sequence No. 12, granting the application to the extent that AFC [Redacted] was re-appointed pursuant to the terms of a subsequent order of appointment,^FN43 which were simultaneously entered requiring the parties to equally share in the fees incurred by AFC [Redacted] in her new appointment (hereinafter "AFC Re-Appointment Order"). Later that day, Defendant filed a notice of appeal of the AFC Re-Appointment Order.^FN44

On March 16, 2026, just five days following her reappointment as attorney for S. R., AFC [Redacted] filed Motion Sequence No. 13,^FN45 seeking the above-referenced relief, by order to show cause, which was conformed,^FN46 on March 17, 2026, directing: (1) March 19, 2026, as the deadline for service on the parties; (2) April 1, 2026, as the deadline for filing of answering submissions, with no reply submissions accepted, and this date serving as the return date for the application.

In support of her application, AFC [Redacted] submitted an affirmation (hereinafter "AFC Affirmation"), wherein she essentially asserts four separate basis in support for her withdrawal. First, AFC [Redacted] claims that due to Defendant's assertion of claims against her, arising out of her conduct as attorney for S. R., she cannot proceed in that role and her withdrawal would not harm the child who can be represented by another appointed counsel:

"Within 5 hours of the issuance of this Court's Decision and Order reappointing me as Attorney for the Child for S. R., on March 11, 2026, Defendant Appellant changed the circumstances of the case by filing a Notice of Appeal of the Order reappointing me. This shifted the focus of the case from the best interest of the Child to accusations and allegations against the conduct of the Attorney for the Child. As such, I can no longer continue as Attorney for the Child, as I would not be able to properly defend the personal attacks against me rendered by Defendant Appellant while representing his daughter in an unbiased manner. It would be in the best interest of my client for her to have new [*6]counsel, unknown to Defendant Appellant, appointed from the appellate panel of the Office of Attorneys for Children.

* * *

On March 12, 2026, at 1:45 p.m. Defendant Appellant R. S. filed an extensive motion in the Appellate Division Second Department seeking a stay of my Order of Appointment, so as to prevent payment of my court ordered retainer, alleging that I was not properly appointed due to my actions as Attorney for the Child in the custody case. He refuses to pay my retainer as directed in the Decision and Order of this Court. He states, " The AFC's conduct is itself at issue in the pending appeals."(EXHIBIT D). This statement alone renders my continued assignment as Attorney for the Child inappropriate since I am the subject of a pending appeal.

I have not had any contact with the Child, S. R. with regard to Defendant's baseless appeal filed September 19, 2025 or his baseless appeal of the Decision and Order of this Court dated March 11, 2026. My withdrawal as Attorney for the Child at this time would have no adverse effect on my client. Rules of Professional Conduct 22 Rule 1200.0 1.16 (c) (1) provides that "a lawyer may withdraw from representing a client when withdrawal can be accomplished without material adverse effect on the interest of the client." S. R.'s current circumstance, living with her Mother and not being forced to see her Father is what she always indicated she wanted. In terms of the appeal, the Court can appoint seasoned counsel from the appellate panel at the Office of Attorneys for Children who could competently and zealously represent the Child."^FN47

Next, AFC [Redacted], asserts that her withdrawal is warranted due to her inability to communicate with Defendant:

"The practice of representing a Child as Attorney for the Child, necessitates contact with counsel for the parents, or if pro se, the parents directly. Rules of Professional Conduct 22 NYCRR 1200.0 Rule 1.16 c (8) provides "a lawyer may withdraw from representing a client when the lawyer's inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal." Extending that to the parents of a client, I cannot work with pro se litigant Defendant Appellant who now has made me the focus of his angry, incessant legal filings. Defendant Appellant has shifted the issue before the appellate division from a vague statement of "protection from parent alienation" to my conduct as AFC for his daughter. Plaintiff Respondent remains silent, taking no position or any action in any pending proceeding. I cannot provide for S. R. the zealous unbiased legal representation she deserves at this time if I cannot work with her pro se parents. It would be in her best interest for me to be relieved and for an AFC from the appellate panel to be appointed."^FN48

AFC [Redacted] then points to the need to prevent any delay caused by the appeal pertaining to her appointment that could be prevented by her withdrawal:

"The undue delay in proceedings caused by Defendant Appellant's challenge to my [*7]reappointment as Attorney for the Child is detrimental to S. R. A stay of proceedings pending his appeal of the Decision and Order relating to my reappointment and the resultant delay in proceedings regarding the September 19, 2025 appeal is detrimental to the interest of the Child. For as long as I have known her, S. R. needs the legal conflict between her parents to cease. If I am relieved as Attorney for Child by this Court, the September 19, 2025 appeal can proceed more timely."^FN49

Finally, AFC [Redacted] asserts that she must be relieved due to Defendant's failure to provide payment of her retainer:

"Defendant Appellant refuses to pay a court ordered retainer and is seeking a stay from the Appellate Division so I receive no retainer as Attorney for the Child. That being the case, I should not be required to provide continued gratuitous service in the Appellate Division going forward. Defendant Appellant's motion to stay to avoid paying my retainer should allow for my being relieved. He is currently refusing to pay my retainer. In Aranona v. Shaibani, 138 AD3d 649, 650, 29 N.Y.S.3d 68, the Second Department made it clear that an attorney should be permitted to withdraw where 'a client refuses to pay reasonable legal fees.'. Here it is the responsibility of Defendant Appellant to pay fees on behalf of his daughter and he is refusing to do so."^FN50

Neither party filed any answering submissions to this application, nor have any further submissions been received.

Legal Analysis

A. The Role of Attorney for the Child.

Just over one hundred years ago, in a decision involving a custody dispute, Judge Cardozo explained the role of a judge presiding over such a litigation in exercising its parens patriae obligation to protect the subject child:

"The difference is more than formal. The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against any one. He acts as parents patriae to do what is best for the interest of the child. He is to put himself in the position of a 'wise, affectionate, and careful parent' (Queen v. Gyngall, *434 surpa), and make provision for the child accordingly. He may act at the intervention or on the motion of a kinsman, is so the petition comes before him, but equally he may act at the instance of any one else. He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights 'as between a parent and a child,' or as between one parent and another. Queen v. Gyngall, supra. He 'interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the [*8]Crown as parens patriae.' Matter of Spence, supra. The plaintiff makes no pretense of invoking this paternal jurisdiction. We are not advised by his complaint whether a division of the custody will tend to the benefit of his sons or to their detriment. He invokes the jurisdiction of a court to settle a dispute. Equity does not concern itself with such disputes in their relation to the disputants. Its concern is for the child" (Finlay v. Finlay, 240 NY 429 [1925]).

Despite the passage of time, the doctrine of parens patriae remains very-much relevant in custody litigation today, requiring the judiciary presiding over such matters to ensure that the rights of the subject children are protected. This judicial obligation is underscored by the universal understanding that custody litigation is largely harmful to the children involved, as noted in one decision, "[i]t is well known to the Court and to mental health professionals that custody litigation is among the highest stress and anxiety producing events in both the parents and the child's lives, and is not to be undertaken lightly (W.J.F. v. L.F., 32 Misc 3d 1203(A) [Sup. Ct. Nassau Cnty 2011]). As noted by the Appellate Division, Second Department:

"The existence of custody litigation, by itself, can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents. Repetitive applications for modification brought by disgruntled litigants in order to harass or vex their former spouses or domestic partners are not unheard of. Litigation over established court-approved child custody and access arrangements can be unsettling and traumatic for children, particularly for children of sufficient age or maturity to comprehend, and worry, about potentially significant changes in their daily lives, such as what home they live in, what family members they live with, what schools they go to, what friends they have, and what activities they undertake. The prospect of having to be interviewed by a judge, consult with counsel, be examined by a forensic clinician, and deal with parents who are embroiled with each other in litigation, can create significant anxiety and stress, which, by itself, may be harmful to a child's development" (Newton v. McFarlane, 174 AD3d 67 [2d Dept 2019]; see also Laura LL. V. Robert LL, 186 Misc 2d 642 [Albany Fam. Ct. 2000] ["Every Family Court Judge in this (and every other) state knows from experience that protracted custody litigation is poisonous to children's emotional (and often physical) health."]).

Recognizing the adverse impacts on children involved in custody litigation, the Appellate Division, First Department, wisely noted, "[f]urther, as in so many other custody litigations, the totally innocent victim itself is the child, whose emotional problems have been exacerbated through the very process by which they were sought to be alleviated" (State ex rel. H.K. v. M.S., 187 AD2d 50 [1st Dept 1993]). In discussing the plight of children in high-conflict custody litigation and the need for the appointment of attorneys to assist such children, one author noted:

"Research on children of divorce has shown that divorce itself harms a substantial number of children. Children of divorce feel as if they have been forced to grow up in two worlds which 'creates endless and often painful complications.' Children caught in the middle of high-conflict custody cases suffer depression, have less financial support and are at a higher risk of mental illness, substance abuse and educational failure. One of the most important factors in a child's postdivorce adjustment, and the single best predicator of a poor outcome, is the level and intensity of the conflict.

* * *

Children, who comprise twenty-five percent of the U.S. population, rely upon others, most often their parents, to protect them; to date, those 'others' have not always done too well. Annually,***over one million children are impacted by divorce***Children want to be heard on matters affecting them. Therefore, when parents abuse or neglect their child or engage in highly conflicted custody battles, or when the state, having custody of a child, fails to provide protection and services, the child should be given a lawyer to ensure that the child's voice is heard.

* * *

In high conflict custody cases, a lawyer for the child can protect the child from becoming a casualty in a zero sum game" (see "Client-Directed Lawyers for Children: It is the Right Thing to Do" 27 Pace Law Review 869 [2007] [internal citations omitted]).^FN51

In the State of New York, attorneys have been appointed to represent children in litigated custody matters, serving as law guardians prior to 2011 and thereafter as attorneys for the children. As noted in the Introducer's Memorandum in Support which resulted in this change, the legislative intent behind the modification was set forth including the need to remove uncertainty as to the role of the appointed counsel as an attorney for the child serving to represent the child:

"An act to amend the civil practice law and rules, the domestic relations law, the executive law, the judiciary law, the family court act, the public health law and the social services law, in relation to the representation of children. This is one in a series of measures being introduced at the request of the Chief Administrative Judge upon the recommendation of her Family Court Advisory and Rules Committee. In February, 2006, the Chief Judge's Matrimonial Commission issued a comprehensive report. In that report, the Commission recommended, inter alia, that the term 'attorney for the child' replace the term 'law guardian' wherever the latter is used in present law. In making this recommendation, the Commission characterized the proposed change in terminology as needed to more accurately reflect the attorney's role: From the testimony at the hearings and the written submissions received, it is clear that there exists a misconception that a law guardian plays a neutral role in these adversarial proceedings the attorney for the child is not a mental health professional, a mediator, a fiduciary, or most importantly, an [*9]arm of the court The Commission reiterates that at all times during the proceeding, the attorney for the child is subject to the same rules of good lawyering and professional responsibility applicable to any attorney in a civil proceeding or action, and must represent the client within those bounds" (NY Bill Jacket, 2010 A.B. 7805, Ch. 41).

The definition and function of the attorney for the child is set forth within the New York State Rules of the Chief Administrative Judge, 22 NYCRR § 7.2, which reads as follows:

"§7.2 Function of the attorney for the child.

(a) As used in this part, 'attorney for the child' means a law guardian appointed by the family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate's court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto.

(b) The attorney for the child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.

(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.

(d) In other types of proceedings, where the child is the subject, the attorney for the child must zealously advocate the child's position.

(1) In ascertaining the child's position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child's capacities, and have a thorough knowledge of the child's circumstances.

(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child's best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney's view would best promote the child's interests.

(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child's wishes. In these circumstances, the attorney for the child must inform the court of the child's articulated wishes if the child wants the attorney to do so, notwithstanding the attorney's position" (emphasis added).

It is black letter law, that the New York State Supreme Court has the authority as provided by 22 NYCRR § 7.2, by reference to the Family Court Act (hereinafter "FCA") § 249 to appoint an attorney for the child in a matrimonial matter [see NY Const. Art. VI. § 7(a); Kagen v. Kagen, 21 NY2d 532 [1968]). The trial Court in Borkowski v. Borkowski, 90 Misc 2d 957 [Sup. Ct. Steuben Cnty 1977] astutely set forth the rationale for such mandate for the appointment and representation at both the Family Court and Supreme Court level, as follows:

"The Family Court Act § 249 mandates just such representation for children in abuse and neglect cases under Article 10 of the Family Court Act. While the language of § 249 [*10]makes it discretionary with the Family Court Judge whether to appoint a law guardian in other cases where the child is the subject of the proceeding, the Court of Appeals has held recently that the Family Court should appoint a law guardian in virtually all permanent neglect cases. The rationale expressed for this holding is that the child has a 'right to be heard', and emphasized the importance of a law guardian 'since the child obviously cannot speak for herself'. The Court observes that without representation of the child, the parents focus on their rights and not on the child's rights. Matter of Orlando, 40 NY2d 103, 386 N.Y.S.2d 64, 351 N.E.2d 711 (1976).

The Court of Appeals has recently recognized some fundamental rights of children, including the right to be present in person as well as by counsel, in Matter of Cecilia R., 36 NY2d 317, 367 N.Y.S.2d 770, 327 N.E.2d 812, and, prior to Matter of Orlando, mentioned the importance of participation by the law guardian 'since the child obviously cannot speak for herself' in Matter of Ray A.M., 37 NY2d 619, 624, 376 N.Y.S.2d 431, 436, 339 N.E.2d 135, 138.

For the same reasons that the parent's right to counsel provided under the Family Court Act must apply in Supreme Court, the child's rights under Section 249 of the Family Court Act must apply in Supreme Court" (Id. at 961) (emphasis added).

In ascertaining the position of the child, the Court may appoint an attorney for the child whose role is to be an advocate for and represent the subject child (Luizzi v. Collins, 60 AD3d 1062 [2d Dept 2009]). Such an appointment is in the discretion of the Court and while not mandatory is the strongly preferred practice (Keen v. Stephens, 114 AD3d 1029 [3d Dept 2014]). "If the court believes that appointment of an attorney for the child will enhance its ability to make a decision in that child's best interests, acting as a 'wise, affectionate, and careful parent,' then it must exercise its discretion to appoint an attorney and allocate the cost reasonably between the parties (or, as in the case at bar, among them) [internal citations omitted]" (People ex rel. KM v. SF, 31 Misc 3d 505 [Sup. Ct. New York Cnty 2011]; see also Kelly G. v. Circe H., 178 AD3d 533 [1st Dept 2019]). The Court of Appeals has noted, when an adult retains an attorney "the choice of legal representation involves nothing more than an economic decision", however when a court determines that the need exists of the appointment of an attorney for a child, the choice of who will serve as counsel for the child is one which goes to the heart of the responsibility of the court to protect the interests of the child, and ensure the attorney appointed is appropriate, as enshrined in the doctrine of parens patriae (see Crosby v. State of New York Worker's Compensation Board, 57 NY2d 305 [1982]).

Attorneys appointed to represent children in custody litigation are required to fully participate in the proceedings, just as counsel for other parties would:

"When an attorney is appointed by the court to represent a child in a contested custody proceeding,* that attorney must be afforded the same opportunity as the attorneys for the parents and other contestants to fully participate in the proceeding (see Matter of White v. White, 267 AD2d 888, 890, 700 N.Y.S.2d 537). An attorney appointed to represent a child in a custody proceeding has the duty and the obligation to zealously represent the child (see Matter of Donna Marie C. v. Kuni C., 134 AD3d 430, 21 N.Y.S.3d 49). In order to fulfill that weighty responsibility, the appointed attorney for the child has the right, equal to the right of the attorneys for the litigants, to fully appear and participate in the litigation, **451 including the right to call, examine, and cross-examine witnesses, [*11]and the right to advance arguments on behalf of the child (see Matter of Krieger v. Krieger, 65 AD3d 1350, 886 N.Y.S.2d 463). These rights do not evaporate upon the conclusion of the case in the hearing court; rather, these rights may be protected and enforced by the taking of an appeal on behalf of the child (see Matter of Michael S. v. Sultana R., 163 AD3d 464, 473, 82 N.Y.S.3d 364)" (Newton v. McFarlane, 174 AD3d 67 [2d Dept 2019]).

Further discussing the requirement of the attorney for the child to zealously advocate for the child in the litigation process, the Appellate Division, Second Department noted:

"Furthermore, in disputed custody/visitation litigation, the appointment of a law guardian has been recognized as appropriate and helpful to the court. The attorney may act as champion of the child's best interest, as advocate for the child's preferences, as investigator seeking the truth on controverted issues, or may serve to recommend **600 alternatives for the court's consideration (see, Family Ct. Act § 249; CPLR 1202; Judiciary Law § 35[7]; Braiman v. Braiman, 44 NY2d 584, 407 N.Y.S.2d 449, 378 N.E.2d 1019; Borkowski v. Borkowski, 90 Misc 2d 957, 396 N.Y.S.2d 962). This court has held that the failure of the court-appointed Law Guardian to take an active role in the proceedings is grounds for vacatur of an order based on an insufficient record (see, Matter of Elizabeth R [Catherine S], 155 AD2d 666, 548 N.Y.S.2d 55)" (Koppenhoefer v. Koppenhoefer, 159 AD2d 113 [2d Dept 1990]).

As noted in Newton, Id., following their initial appointment, the attorney for the child must continue to counsel the subject child in regard to any appellate litigation:

"Additionally, although the record reveals that the AFC met with the children during the Family Court proceeding, it does not appear that he met or spoke with them again during the appeal. The children were, 'at the least, entitled to consult with and be counseled by [their] assigned attorney, to have the appellate process explained, to have [their] questions answered, to have the opportunity to articulate a position which — with the passage of time — may have changed, and to explore whether to seek an extension of time within which to bring [their] own appeal of Family Court's order. Likewise the child[ren were] entitled to be [apprised] of the progress of the proceedings throughout. It appears that none of these services was provided to the child[ren]' (Matter of Mark T. v. Joyanna U., 64 AD3d at 1094—1095, 882 N.Y.S.2d 773 [citation omitted]). The AFC thus 'failed to fulfill his essential obligation,' and the children did not receive the effective assistance of appellate counsel (id.; accord Matter of Lewis v. Fuller, 69 AD3d 1142, 1142—1143, 892 N.Y.S.2d 801 [2010]; see Matter of Lamarcus E. [Jonathan E.]; 90 AD3d 1095, 1096, 934 N.Y.S.2d 553 [2011]; see also Matter of Seeley v. Seeley, 119 AD3d at 1167, 989 N.Y.S.2d 691). Accordingly, the AFC will be relieved of his assignment, the Court's decision will be withheld and new counsel will be assigned to represent the children" (Jennifer VV v. Lawrence WW., 182 AD3d 652 [3d Dept 2020]).^FN52

Once an attorney for the child is appointed in a custody litigation to protect the interests of the child, such appointment establishes an attorney-client relationship between the attorney and child (see Awan v. Awan, 75 AD3d 597 [2d Dept 2010]; see also Matter of New York City Dept. of Social Services on Behalf of Samuel, 208 AD2d 746 [2d Dept 1994]; Bently v. Bently, 86 AD2d 926 [3d Dept 1982]). As with all attorney-client relationships, "[a]n attorney stands in a fiduciary relationship to the client which relationship is imbued with ultimate trust and confidence that imposes a set of special and unique duties," and, "[o]f paramount importance is the duty of counsel to 'deal fairly, honestly and with undivided loyalty' to the client, which includes avoiding conflicts of interest and honoring the client's interests over that of the attorneys" (Elacqua v. Physicians' Reciprocal Insurers, 52 AD3d 886 [3d Dept 2008]).

"The AFC's role in cases is much deeper than just a functional one in representing a client. AFC's develop relationships with their clients and must advocate for them without prejudicing their rights" (M.R. v. R.R., 88 Misc 3d 1230(A) [Sup. Ct. Richmond Cnty 2026]). With respect to the attorney-client relationship formed between a court appointed attorney for the child and the subject child, including the duties imposed upon the attorney following appointment, one trial court decision noted:

"The appointment creates an attorney-client relationship that makes the attorney for the child subject to the same ethical requirements applicable to all lawyers, 'including but not limited to constraints on: ex parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in litigation' (22 NYCRR 7.2 [b]). These ethical requirements are rooted in an attorney's fundamental duty 'to fully protect client confidences and secrets' and these rules 'offer a clear test which is easy to administer' (Solow v. Grace & Co., 83 NY2d 303, 308 [1994]). In addition, an attorney 'must avoid not only the fact, but even the appearance, of representing conflicting interests' (Cardinale v. Golinello, 43 NY2d 288 [1977]). '[T]he lawyer may not place himself in a position where a conflicting interest may, even inadvertently, affect, or give the appearance of affecting, the obligations of the professional' (Matter of Kelly, 23 NY2d 368 [1968] )" (S.A. v. S.K., 40 Misc 3d 1241(A) [Bronx Fam Ct 2013]).

Despite the attorney for the child having been appointed to serve only the needs of the subject child, following their appointment, parents and their counsel routinely seek to gain an alliance with the attorney for the child to further their own interests in the litigation, as noted by one author:

" 'Winning over' an attorney for the child often becomes part of counsel's litigation strategy, with each attorney, an his or her client, vying for the approval of the attorney for the child, often communicating directly with him or her. Where the attorney for the child does not appear to side with your client, the client and counsel will view the situation as [*12]'two against one.' " (7 Law and the Family New York § 63:10 (2025-2026 ed.).

However, as noted in one trial court decision, the performance of the attorney for the child is based not upon services rendered to either or both parents, but to furtherance of the interests of the subject child, "[f]inally, the father claims that the Law Guardian's performance was deficient, but a Law Guardian is counsel for the child and is not required to meet 'standards of performance laid down for [him or] her by other counsel in the case, whose motives are dictated by the obligation to represent another party' and not to the interests of the child. The relevant inquiry is whether the child received the effective assistance of counsel..." [Dana A. v. Martin B., 72 AD3d 1136 [3d Dept 2010] [internal citations omitted]).

Unfortunately, upon their assessment that the appointed attorney for the child is taking positions contrary to their own, parties involved in custody litigation often turn their anger towards the attorney for the child who is merely performing their duties (see Husain A.R. v. Jennifer J.B., 67 Misc 3d 1228(A) [Kings Fam Ct 2020] ["Mother***engages in frequent verbal attacks and insults against counsel and the AFC***"]; see also Anonymous v. Anonymous, 74 Misc 3d 1209(A) [Sup. Ct. New York Cnty 2022 ["***despite Father's repeated personal and persistent verbal attacks upon both Mother and the attorney for the children."]; R.B. v. I.S., 82 Misc 3d 1203(A) [Richmond Fam Ct 2024] ["Throughout the proceedings, Mr. B has engaged in a campaign to discredit the assigned attorneys seeking to have mother's attorney as well as the two AFCs assigned on this matter to be removed from this case and proceeding"]).

In such instances where a parent believes an attorney for the child is not aligned with their custody position, it is not uncommon for a motion to remove the attorney for the child to be filed by the aggrieved parent. However, as artfully set forth in one trial court decision, removal of the attorney for the child is not warranted absent a conflict of interest or failure to diligently represent the best interest of the child:

"An attorney for the child is not either parent's advocate, he or she is an attorney duly appointed by the court to perform a clearly defined duty: representing the child to the best of his or her ability (see 22 NYCRR § 7.2[d] ['Where the child is the subject, the attorney for the child must zealously advocate the child's position']). The role 'is to be an advocate for and represent the best interests of the child, not the parents.' Zappin v. Comfort, 49 Misc 3d 1201(A), 26 N.Y.S.3d 217 (Sup. Ct., NY Co. 2015), aff'd, 146 AD3d 575, 49 N.Y.S.3d 6 (1st Dept. 2017), citing In re Brittany W., 25 AD3d 560, 806 N.Y.S.2d 426, 427 (2d Dept. 2006). An attorney for the child may, of course, advocate for a position that either agrees or disagrees with one or both parents — logically, in a custody case between two parents, it may well be that the attorney for the child sometimes agrees with one parent or another on at least some issues, or disagrees with one or both parents on at least some of the other issues. It would not be possible (or reasonable) for there to be, what Husband seems to be advocating for, a rule that an attorney for the child would be required to always take a position that deviates from what either parent is asking for, lest the attorney for the child be accused of 'taking sides.' There is, of course, no such rule. An attorney for the child, of course, may sometimes agree with one or both parents. Accordingly, Father is not correct when he states (without supporting legal basis or citation) that 'Mr. Wiener and Ms. Bender are adversaries in the instant action with Mr. Wiener representing [Wife] and Ms. Bender representing the parties' son, O.' [Jewell Affir. ¶35]. An attorney for the child is not necessarily an [*13]'adversary' or 'ally,' for, against, with, or opposed to either parent. As the Appellate Division, Second Department has held, there is no evidence of an inappropriate 'bias' against one parent merely because an attorney for the child adopts a position favoring the child's placement with the other parent. In re Brittany W., 25 AD3d 560, 806 N.Y.S.2d 426, 427 (2d Dept. 2006). To require otherwise would not be logical, possible, or in the children's best interests.

* * *

'Absent a conflict of interest or failure to diligently represent the best interests of the child, the attorney for the child should not be removed.' Sagaria v. Sagaria, 2019 NY Slip Op. 04980, 2019 WL 2518503, at *1 (2d Dept. June 19, 2019)" (C.C. v. D.D., 64 Misc 3d 1216(A) [Sup. Ct. New York Cnty 2019]).

B. Legal Authority on Attorney Withdrawal.

"The law of a change of counsel, including to self-represented, combines statutory law, judicial discretion, and ethical rules" (Bank of America v. Glenn, 81 Misc 2d 422, 424 [Sup Ct Suffolk County 2023]). "There are different ways that attorney-client relationships can be ended. One way is for the client to discharge the attorney, which can be done at any time with or without cause. A second way is for the attorney and client to execute a consent to change attorney or for counsel to execute a stipulation of substitution, which is then filed with the court in accordance with CPLR 321(b). Alternatively, if the attorney deems it necessary to end the relationship without the consent of the client, such as where there is an irretrievable breakdown in the relationship or a failure of cooperation by the client, the attorney may move, on such notice as may be directed by the court, to be relieved as counsel by court order" (Farage v. Ehrenberg, 124 AD3d 159, 165 [2d Dept 2014][internal citations omitted]).

Pursuant to CPLR 321(b):

"Change or withdrawal of attorney. 1. Unless the party is a person specified in section 1201, an attorney of record may be changed by filing with the clerk a consent to the change signed by the retiring attorney and signed and acknowledged by the party. Notice of such change of attorney shall be given to the attorneys for all parties in the action or, if a party appears without an attorney, to the party.

2. An attorney of record may withdraw or be changed by order of the court in which the action is pending, upon motion on such notice to the client of the withdrawing attorney, to the attorneys of all other parties in the action or, if a party appears without an attorney, to the party, and to any other person, as the court may direct."

"Although a client may, as a matter of public policy, discharge an attorney at any time, with or without cause an attorney of record in an action may only withdraw or be changed or discharged in the manner prescribed by statute" (Moustakas v. Bouloukos, 112 AD2d 981, 983 [2d Dept 1985] [internal citation omitted]). In Green v. Gasparini, 24 AD3d 505 [2d Dept 2005], the court held that counsel may withdraw upon a showing of "good cause" (see also Williams v. Lewis, 258 AD2d 974 [4th Dept 1999] [counsel may withdraw "only upon a showing of good and sufficient cause"]; see also Matter of Menghi v. Trotta-Menghi, 162 AD3d 771 [2d Dept 2018] citing CPLR § 321[b]). "The decision to grant or deny permission for counsel to withdraw lies within the discretion of the trial court" (Cashdan v. Cashdan, 243 AD2d 598 [2d Dept 1997]). That discretion, however, is not unlimited (see e.g., Engleberg v. Perr, 172 AD3d 1169 [*14][2d Dept 2019] [abuse of discretion when court denied counsel's motion to be relieved for client's failure to pay legal fees]. "An attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees. Likewise, an attorney may withdraw from representing a client if the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively" (Villata v. Kokkinos, 170 AD3d 1077, 1079 [2d Dept 2019][internal citations and quotation marks omitted]; Bank of Am., N.A. v. Chadha, 214 AD3d 695 [2d Dept 2023]). Notably, upon review of an application to withdraw by counsel, the reviewing court has the duty to protect the right to counsel as the relationship between attorney and client is often imbalanced (see Seth Rubenstein, P.C. v. Ganea, 41 AD3d 54 [2d Dept 2007]).

The New York State Rules of Professional Conduct, codified as 22 NYCRR § 1200, Rule 1.16, pertaining to counsel declining or terminating an attorney-client relationship, sets forth the following regarding the withdrawal of counsel:

"(b) Except as stated in paragraph (d), a lawyer shall withdraw from the representation of a client when:

(1) the lawyer knows or reasonably should know that the representation will result in a violation of these Rules or of law;

(2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;

(3) the lawyer is discharged; or

(4) the lawyer knows or reasonably should know that the client is bringing the legal action, conducting the defense, or asserting a position in the matter, or is otherwise having steps taken, merely for the purpose of harassing or maliciously injuring any person.

(c) Except as stated in paragraph (d), a lawyer may withdraw from representing a client when:

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer's services to perpetrate a crime or fraud;

(4) the client insists upon taking action with which the lawyer has a fundamental disagreement;

(5) the client deliberately disregards an agreement or obligation to the lawyer as to expenses or fees;

(6) the client insists upon presenting a claim or defense that is not warranted under existing law and cannot be supported by good faith argument for an extension, modification, or reversal of existing law;

(7) the client fails to cooperate in the representation or otherwise renders the representation unreasonably difficult for the lawyer to carry out employment effectively;

(8) the lawyer's inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal;

(9) the lawyer's mental or physical condition renders it difficult for the lawyer to carry out the representation effectively;

(10) the client knowingly and freely assents to termination of the employment;

(11) withdrawal is permitted under Rule 1.13(c) or other law;

(12) the lawyer believes in good faith, in a matter pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal; or

(13) the client insists that the lawyer pursue a course of conduct which is illegal or prohibited under these Rules.

(d) If permission for withdrawal from employment is required by the rules of a tribunal, a lawyer shall not withdraw from employment in a matter before that tribunal without its permission. When ordered to do so by a tribunal, a lawyer shall continue representation notwithstanding good cause for terminating the representation."

C. AFC [Redacted]'s Requested Relief.

Here, as noted above, AFC [Redacted] seeks permission of this Court to withdraw as counsel for S. R. due to a number of asserted basis, all of which this Court finds to be wholly without merit as will be set forth in detail herein below.

[1] Request for Withdrawal Due to 22 NYCRR § 1200, Rule 1.16[c][8]

In her application, AFC [Redacted] asserts that due to the appeal filed pertaining to her conduct as an attorney for the child she will have difficulty communicating with the self-represented Defendant, requiring her withdrawal pursuant to 22 NYCRR § 1200, Rule 1.16[c][8]. However, review of this rule reflects that it is entirely inapplicable to the situation in this matter as it does not pertain to attorneys and/or self-represented litigants who are by the very nature of litigation entrenched in adversarial positions, but to multiple attorneys who are retained to represent the same party to a litigation who after then retention as co-counsel can no longer proceed as co-counsel. As explained in one treatise pertaining to Rule 1.16[c][8]:

" '(8) the lawyer's inability to work with co-counsel indicates that the best interest of the client likely will be served by withdrawal;'

Rule 1.16(c)(8) states an exception to the old maxim that two heads are better than one. Subparagraph (c)(8) contains two concepts— 'inability' of the withdrawing co-counsel and the best 'interest' of the client.

'the lawyer's inability to work with co-counsel': A lawyer's inability to work with co-counsel can arise in many ways. If two lawyers who are co-counsel cannot agree on key points, or if their work habits clash so badly that they cannot work effectively together, or if they dislike each other intensely, or if for any other reason they cannot work well together, then the client may be worse off with two lawyers than one. If the client is likely to be better off having only one lawyer, then either lawyer may withdraw on that basis. Conversely, a lawyer may not withdraw despite inability to work with co-counsel if the withdrawal is likely to materially harm the client's interests (i.e., if withdrawal is not in the client's 'best interest')" (Simon's NY Rules of Prof. Conduct § 1.16:29) (emphasis added).

While case law as to the application of Rule 1.16[c][8] is limited, this Court located two cases which confirm that this Rule is not applicable to adversary counsel and/or self-represented litigants, but to co-counsel for a single party (see Holmes v. City of New York, 2019 WL 5686650 [Sup. Ct. New York Cnty 2019]; see also Firoru International, Corp. v. Empire Medical Testing, P.C., 2011 NY Slip Op. 33647(U) [Sup. Ct. Nassau Cnty 2011]).

Accordingly, the application of AFC [Redacted] for withdrawal pursuant to 22 NYCRR § [*15]1200, Rule 1.16[c][8] must be denied.

[2] Request for Withdrawal Due to Defendant Non-Payment of AFC Retainer

AFC [Redacted] asserts that she should be permitted to withdraw as counsel for S. R. due to the self-represented Defendant's failure to pay her court ordered retainer an directs this Court to legal authority limited to two cases cited in her submission, both of which are inapplicable as set forth herein. Initially, Holmes v. Y.J.A. Realty Corp., 128 AD2d 482 [1st Dept 1987] is cited wherein the Appellate Division, First Department reversed a trial court denial of a motion to be relieved based upon, in part, a determination that "[w]here a client repudiates a reasonable fee arrangement there is no obligation on the part of counsel to finance the litigation or render gratuitous services." However, unlike the litigant in Holmes, where an adult litigant retained counsel and later failed to comply with the terms of the engagement agreement between the litigant and counsel, AFC [Redacted] represents a child who engaged in no such conduct. Indeed, this Court appointed AFC [Redacted] by order directing that the party-parents make payment of fees due to AFC [Redacted]. To apply Holmes to this situation would be unjust as it would work to penalize S. R. for the apparent failure of Defendant to comply with an order of this Court.

The second case cited, Aragona v. Shaibani, 138 AD3d 649 [2d Dept 2016], is likewise inapplicable due to the same rationale as set forth above pertaining to Holmes. In Aragona, the Appellate Division, Second Department held that a trial court had abused its discretion in failing to grant a motion to withdraw by counsel due to the non-payment of legal fees to counsel, noting, "[a]n attorney may be permitted to withdraw from employment where a client refuses to pay reasonable legal fees." However, in this matter no such client refusal to pay legal fees has occurred, as the client is a child who by order of this Court was appointed counsel with a directive that her parents pay the fees of the appointed counsel.

Understandably, AFC [Redacted] asserts her displeasure arising out of Defendant's non-payment of her court-directed fees, but her withdrawal on this basis is not warranted as other means of enforcement of the payment of her fees exist including seeking court intervention for enforcement of the order of appointment. In a case similar to this, wherein a trial court was presented with a motion by an attorney for the child to enforce a parent to provide payment of the fees due to the attorney for the child, the court found the parent in contempt and directed that the court-ordered fees be paid:

"It is abundantly evident that an attorney for the child is essential in litigation involving issues of custody and parenting time. The Domestic Relations Law recognizes and addresses the need for counsel fees to be awarded to enable a party to prosecute or defend on issues of custody. As are counsel for parents, an attorney representing a child is entitled to the fees necessary to properly represent his or her client in what is often protracted litigation. The needs of the children are of paramount concern in custody litigation and their representation must not be compromised.

* * *

This Court finds no reason to distinguish between a parent's right to counsel fees and the child's right in the same litigation. The AFC cannot and should not be expected to actively participate in ongoing litigation without payment.

Defendant's unmistakable decision to pay only his counsel fees and not those of his child, despite a clear order directing him to do so, is unacceptable to this Court. The fact that [*16]Defendant has not paid any sum of money towards the AFC's fees is shocking to the Court. If the Court fails to enforce its own orders, it would make them useless and violate the strong public policy that court orders are to be followed.

For the above reasons, and because the Court finds that Defendant has failed to comply with an unequivocal court order **836 directing Defendant to pay a $3,000 retainer to the AFC within 10 days of September 17, 2017, the AFC's motion is GRANTED to the extent Defendant is hereby is deemed to be in contempt under Judiciary Law § 753" (T.K. v. D.K., 61 Misc 3d 311 [Sup. Ct. Nassau Cnty 2018]).

Accordingly, the application of AFC [Redacted] for withdrawal on the basis of non-payment of her court-directed fee by Defendant is denied.

[3] Request for Withdrawal on Additional Basis

Finally, AFC [Redacted] asserts that her continued representation of S. R. while simultaneously being attacked by Defendant would be "detrimental" to the child and asserts that her withdrawal is appropriate directing this Court to NYCRR § 1200.0, Rule 1.16(c)(1) which provides that "a lawyer may withdraw from representing a client when withdrawal can be accomplished without material adverse effect on the interest of the client." However, it is the determination of this Court that in the event AFC [Redacted] were permitted to withdraw under the circumstances presented it would in fact be detrimental to S. R., as it would have a materially adverse effect on the interest of her as the client, thereby preventing this Court from granting the requested relief on this basis.

As noted above, children involved in high conflict custody litigation are exposed to a situation where they face significant challenges including anxiety stemming from the conflict between their parents, who as their natural guardians are usually poised to be the ones who offer them protection from the difficulties they face in life, but due to the very nature of the litigation are often hampered from fully doing so due to their own involvement and conflicting interests. Recognizing this circumstance in matrimonial litigation, the reviewing court then often exercises its parens patriae authority by appointing an attorney to represent the subject child to both ensure that their voice is heard and their rights are protected during the proceedings. This case is no different, as AFC [Redacted] was appointed to represent S. R. during high conflict litigation between her parents lasting nearly a quarter of her life, involving several courts who have entered multiple orders of protection for the benefit of Plaintiff against Defendant. Despite the passage of several years, this litigation continues at the behest of Defendant who AFC [Redacted] describes as engaging in "ongoing, unreasonable and extreme efforts to control every aspect" of S. R.'s life which the child resists.

During her representation of S. R., AFC [Redacted] has asserted that she has zealously represented the child in line with her interests and positions, which this Court has no reason to doubt, nor does this Court find a conflict of interest to exist that would prevent this continued representation. To the contrary, AFC [Redacted]'s long involvement in this litigation situates her to be best suited to provide legal counsel to S. R. who she has undoubtedly formed a strong attorney-client bond during the past several years. The suggestion of AFC [Redacted] that this Court could merely appoint "seasoned counsel from the appellate panel" would be wholly inappropriate as it would sever her attorney-client relationship with S. R. without just cause, and needlessly resulting in this child meeting with yet another attorney to share her confidences, positions and concerns. While this would be entirely unfair to S. R., it would also set a [*17]dangerous precedent pertaining to the withdrawal of attorneys for the children in high-conflict litigations, where the exit of attorneys for the children could be prompted by parents attacking them, due to seeing them as unaligned with their own position. This would, in turn, usurp the court's parens patriae authority to select counsel for children and place it in the hands of interested parties who may seek, as a litigation tactic, to displace appointed counsel for their own benefit, rather than the subject child's.

Although it is true that some delay may be caused by the additional applications of Defendant pertaining to AFC [Redacted]'s continued representation of S. R., it is the correct and just course. While there is certainly wisdom in the legal maxim "justice delayed is justice denied" it is also undeniable that true justice cannot be rushed, as the result will surely be decisions made in haste, without the thoughtful approach that litigants deserve and that the courts are duty bound to enter. Therefore, this Court cannot and will not impair the rights of S. R. for the convenience of expediency, and must deny the instant application.

D. Other Relief.

To the extent relief is not granted or otherwise addressed herein, it is hereby denied.

Accordingly, it is hereby

ORDERED that Motion Sequence No. 13 is denied; and it is further

ORDERED that by April 16, 2026, AFC [Redacted] shall serve a copy of this Order with Notice of Entry on Plaintiff and Defendant, via NYSCEF filing and e-mail, and file proof of service with the Court on the same day.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 14, 2026

White Plains, New York

ENTER:

HON. JAMES L. HYER, J.S.C.