Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) [Attorney for Child Appointment]

 

In Lomanto v Agbelusi, 2022 WL 17418696 (S.D. New York, 2022) on October 24, 2022, attorney Sarah Phillips of the law firm Simpson Thatcher & Bartlett, LLP filed a notice of appearance in this Hague Convention case on behalf of the minor children, R.A.L. and S.M.L. On October 25, 2022, the Court provisionally appointed Simpson Thatcher as counsel for the children, pending briefing by the parties. The Court observed that Petitioner generally objected to the appointment of an attorney for the children, as “the Mother has several attorneys on her team who are tasked of rendering proof” related to the defenses that pertain to the children, such as “grave risk of harm” and the children’s wishes, and “the defenses asserted by the Mother are identical (duplicative) if the issues that would need to be addressed by the Attorney for the Children.” The Court disagreed. Appointing independent counsel for the children in this case was “consistent” with the procedures “adopted by district courts in Hague Convention cases.” Johnson v. Johnson, No. 11 Civ. 37, 2011 WL 569876, at *2 (S.D.N.Y. Feb. 10, 2011); see also Sanchez v. R.G.L., 761 F.3d 495, 508 (5th Cir. 2014)) (quoting Chaffin v. Chaffin, 568 U.S. 165, 178 (2013)). This case presented complex and delicate issues that pertain to the children, and appointment of counsel was not only consistent with regular practice in Hague Convention cases, but is also warranted. This was particularly true where it is possible that one or more children may be questioned by the Court, whether in camera or otherwise. See McGovern v. McGovern, 58 A.D.3d 911, 915, 870 N.Y.S.2d 618, 622 (2009) The role of the children’s counsel here was quite limited. The scope of children’s counsel’s representation in a Hague Convention proceeding is limited to precisely [the] types of issues raised under the Convention. Counsel does not perform a best interests analysis or make custody-related recommendations. The role of the children’s counsel, would be to advance the children’s articulated wishes, assist the children in understanding the proceedings and to appear on their behalf as needed by the Court to assess the parties’ claims. For this limited purpose and for the needs of this case the appointment of counsel for the children was appropriate, rather than the appointment of a guardian ad litem. Out of an abundance of caution, the Court determined that it was appropriate to add court-appointed co-counsel with experience representing children in Hague Convention cases. The Court therefore appointed Professor Jennifer Baum, the Director of the Child Advocacy Clinic at St. John’s University School of Law, as co-counsel along with Simpson Thatcher for both minor children.