IN RE: a Proceeding under Article 6 of the Family Court Act Michael E. TROSSET (2011)

PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN THIRTY DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, THIRTY–FIVE DAYS FROM THE MAILING OF THE ORDER TO THE APPELLANT BY THE CLERK OF THE COURT, OR THIRTY DAYS AFTER SERVICE BY A PARTY OR LAW GUARDIAN UPON THE APPELLANT, WHICHEVER IS EARLIEST.

The Attorney for the Child filed a petition to modify an order of this court on October 7, 2010. Respondent mother filed a motion to dismiss the petition, which was made returnable for submission of papers. The court has considered the papers filed in support of the motion as well as the papers in opposition filed by the petitioner and respondent father.

Respondent alleges that the Attorney for the Child lacks standing to file a petition concerning custody on behalf of the child. Despite arguments to the contrary, respondent's position is not an unreasonable one given that children are not specifically granted standing in any of the statutes which confer standing to parties in custody and visitation matters. (See, Domestic Relations Law §§ 70(a), 240; Family Court Act § 651(b); Janet S.M.M. v. Commissioner of Social Servs., 158 Misc.2d 851, 853, 601 N.Y.S.2d 781 [Fam Ct, Westchester County 1993] ). By contrast, Family Court Act § 522 authorizes a child to commence a paternity proceeding. By extension, the conferral of standing upon the child permits the Attorney for the Child to file a paternity petition on the child's behalf. (See, Elacqua ex rel. Tiffany DD v. James EE, 203 A.D.2d 688, 610 N.Y.S.2d 354 [3rd Dept.1994]; see also, Family Court Act §§ 241, 249).

The absence of specific authority regarding custody and visitation is problematic for petitioner. However, in the absence of a statute granting a child standing to sue, standing depends upon whether the party has alleged facts showing a disadvantage to themselves as individuals. (See, Baker v. Carr, 369 U.S. 186, 206 [1962]; see also, Janet S.M., at 853.). In this matter, the Attorney for the Child makes allegations which relate directly to the child's desire to live with his father. There can be little dispute that the child has a stake in this outcome sufficient to confer standing upon him to file a petition, and by extension, for the Attorney for the Child to file on his behalf. (See, In re Custody of Rebecca B., 227 A.D.2d 315, 642 N.Y.S.2d 685 [2nd Dept.1996] ). Accordingly, the motion to dismiss is denied.

The father's attorney asks for fees for what he deems is a “frivolous motion.” His request is denied.

“The authority to impose sanctions or costs is committed to the court's sound discretion.” (See, DeRuzzio v. DeRuzzio, 731 N.Y .S.2d 775,776, 28 A.D.2d 896 [3rd Dept.2001] ). Costs are awarded for frivolous conduct, which is defined as conduct which “(1) ․ [is] completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) ․ [is] undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) ․ asserts material factual statements that are false.” (22 N.Y.C.R.R. 130–1.1(c)).

Other than counsel's conclusion that the motion is frivolous, there were no other allegations made which would support such a finding. Although the court ultimately disagreed with the respondent, the court does not find that respondent's arguments to be without merit nor does the court consider the law particularly clear on this specific issue.

Now, based on the foregoing, it is hereby

ORDERED that the motion to dismiss the petition is denied; and it is further

ORDERED that the request for fees by respondent father is denied; and it is further

ORDERED that a fact-finding hearing on this matter is scheduled for Thursday, May 19, 2011 at 9:30am–12:00pm (No further notice will be given).

BRIAN D. BURNS, J.