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Equal Protection Denied in New York to Some Family Law Litigants in Supreme Court: An Assigned Counsel Dilemma for the Courts

In New York, the supreme court and the family court enjoy concurrent jurisdiction over many types of family law cases. (1) Among them are those concerning child custody, child and spousal support, adoption, abuse and neglect, parental rights termination, and paternity. For some types of cases, such as those concerning adoption and child guardianship, the surrogate's court also has concurrent jurisdiction. (2) The supreme court has general jurisdiction and can technically hear cases that the family or surrogate's court may adjudicate. (3) As a practical matter, the supreme court does not exercise its theoretical jurisdiction over some of these case types. (4) Nevertheless, the supreme court routinely exercises its concurrent jurisdiction in certain family law areas, one of the most important of which is child custody. Child custody is so important that the New York Family Court Act (FCA) section 261 provides litigants in child custody matters with a right to counsel: "Persons involved in certain family court proceedings may face the infringement of fundamental interests and rights, including the loss of a child's society ... and therefore have a constitutional right to counsel in such proceedings." (5) Section 262(a) of the FCA details several types of cases in which the parties have the right to assigned counsel. FCA section 262(c) further provides that "any order for the assignment of counsel issued under this part shall be implemented as provided in article eighteen-B of the county law." (6) This statutory scheme results in indigent parents (7) and respondents (8) in child custody matters being routinely provided assigned counsel and, thus, having protected what FCA section 261 declares to be their "constitutional right to counsel"--at least if their case happens to be in the family court. (9) Unfortunately, this right is only guaranteed in family court proceedings. No similar statutes expressly recognize or provide for the implementation of a similar right to assigned counsel in supreme court. Interestingly, though, the Surrogate's Court Procedure Act (SCPA) expressly provides for the right to assigned counsel for parents and others that find themselves in essentially identical types of cases that may be heard in surrogate's court. (10) SCPA section 407 was enacted just two years after FCA sections 261 and 262. (11) This quick follow up was no doubt brought about, at least in part, because when the legislation to create FCA sections 261 and 262 was still pending, the Surrogates' Association had already recognized that litigants in the surrogates' courts were being inappropriately left out in the cold. It wrote: The declaration of public policy set forth in new Section 261 would seem to cover all courts having jurisdiction over any of the proceedings that are specified. However, in the amendments to the County Law relating ... to ... expenses of counsel assigned to these indigent persons, the sections relate only to proceedings in the Family Court.... We thus have the anomalous situation of a legislative declaration of public policy which would seem to cover the Surrogates' Courts and at the same time provisions for implementing that policy which relate only to the Family Court and exclude the Surrogates' Courts. This confusion would not be a reason for disapproving the bill. It might leave the Surrogates' Courts in a position where counsel would necessarily be provided without any means of compensating counsel. (12) With the enactment of SCPA section 407 two years later, this "confusion" came to an end? The bill's sponsor in the senate discussed the recent statutory changes providing for assigned counsel in family court and addressed the surrogate's court omission: Inexplicably, the statute failed to recognize that in proceedings such as adoption proceedings and some proceedings for termination of parental rights, the Surrogate's Court has concurrent jurisdiction with the Family Court and did not extend the right to counsel to such proceedings in that Court. …