A.C.v.D.R

Appellate Division of the Supreme Court of New York, First DepartmentJan 11, 2007
36 A.D.3d 465 (N.Y. App. Div. 2007)
36 A.D.3d 465829 N.Y.S.2d 372007 N.Y. Slip Op. 216

Nos. 10053, 10054.

January 11, 2007.

Orders, Supreme Court, New York County (Joan B. Lobis, J.) entered February 14 and April 28, 2006, which, to the extent appealed from as limited by the briefs, enjoined defendant from attending her child's medical appointments, directed the parties to submit proposals to resolve differences with respect to the child's extracurricular activities, enjoined defendant from taking the child to consult with an attorney regarding custody issues, enjoined the parties from discussing court proceedings or the current custody schedule with child, and denied defendant's request to appoint a law guardian, unanimously affirmed, without costs.

Bender Burrows Rosenthal, LLP, New York (Susan L. Bender of counsel), for appellant.

Blank Rome LLP, New York (Leonard G. Florescue of counsel), for respondent.

Before: Tom, J.P., Andrias, Marlow and Gonzalez, JJ.


In this child custody dispute, defendant mother seeks additional modification of the trial court's June 20, 2003 ruling with respect to medical decision-making. The 2003 decision noted defendant's use of "alternative therapies," her refusal to vaccinate her child, and her opposition to fluoride treatments for her child's teeth. Although the 2003 decision is not before this Court for review, the February 2006 order reemphasized the court's concern that defendant continued to undermine plaintiff father's medical decision-making authority. It is clear that the trial court considered the best interests of the child ( see Finlay v Finlay, 240 NY 429, 433; Domestic Relations Law § 70 [a]) when it directed defendant to ensure compliance with all prescribed medicine and any other programs, as required by plaintiff and the medical providers.

Defendant objects to the injunctive sanctions imposed on her without a hearing. We note the February 2006 order allowed the parties to reexamine solely the area of decision-making with respect to extracurricular activities. The court was not required to hold a hearing in light of its already extensive experience with the case ( Tirschwell v Beiter, 295 AD2d 266; Skidelsky v Skidelsky, 279 AD2d 356).

The trial court properly exercised its discretion in declining to appoint a law guardian for the child ( see Richard D. v Wendy P., 47 NY2d 943; Skidelsky, 279 AD2d at 356). The February 2006 order specifically denied such appointment as there were no future proceedings before the court. This was proper.

It is clear, from the long and contentious history of this case, that the trial court acted reasonably to protect the child from direct involvement in the litigation by enjoining defendant from taking the child to a lawyer, and by enjoining the parties from initiating discussions about court proceedings and the current access schedule with the child. We have considered defendant's remaining arguments and find them meritless.