The Best Interests of the Child in New York Courts

This article discusses the crucial case of Matter of Adoption of Doe , an appeal pending in the highest New York state court, the Court of Appeals. The case has attracted little attention thus far, but the opinion of the Court could very well be an important restatement about the interests of the child in a custody battle.
The Court is considering a 2008 ruling of the Surrogate(In re Petition to Vacate an Adoption Decree, 58 AD3d 186 which granted LMG’s (the adoptive father’s) application for immediate visitation and for reversal of a prior order granting ERJ’s (the putative adoptive mother’s) application to adopt Doe, a Cambodian orphan. The Court stated that one basis for review the termination of the adoptive father’s rights without consideration of the best interests of the child. This issue arose because of the Surrogate's removal of the child's guardian ad litem.
A. The Ubiquitous Doctrine of the "Best Interests of the Child"
In adjudicating custody and visitation rights, the most important factor for the court to consider is the best interests of the child. (Eschbach v Eschbach, 56 NY2d 167, 174.) This basic principle is echoed in jurisdictions across the nation. (See Guardianship of Claralyn S.,148 Cal. App. 3d 81 )
The best interests of the child are determined by a review of the totality of the circumstances. (Eschbach v Eschbach, 56 NY2d 167, 171.) The determination is governed by “an assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents . . . “ (Matter of Plaza v Plaza, 305 AD2d 607, 607; e.g. Matter of Star Leslie W., 63 NY2d 136, 147-148; Matter of Lady Justice I. v. Edna I., 50 A.D.3d 425.) In New York, jurisdiction is given to the Supreme Court, the Family Court and the Surrogate’s Court to consider this issue.
B. The Guardian Ad Litem and the Best Interests of the Child
A guardian is "absolutely independent of any influence from either parent" and therefore may represented the child in an independent fashion. (Matter of Scott L. v Bruce N., 134 Misc 2d 240, 246). Matter of Stien v Stien, 130 Misc 2d 609, 615, states:
Either parent, or both, may try to persuade the court …
that he or she only has the child's best interests in mind.
Either parent, or both, may—and often does—see the child
responding badly to the pulling and hauling of a custody
battle and place the blame on the other, exonerating him
or herself. The bitterer the contention, the greater the need
for counsel loyal only to the child, beholden to neither
parent, exercising independent judgment, not answerable
to either party for her manner of representation.
The issue of whether there us a necessity for a child who is not a party to have a guardian is undecided under New York law. (Scott L. v. Bruce N., 134 Misc.2d supra at 242, n.2 .) The Surrogate held that the previously appointed guardian for Doe was neither legally required nor necessary to a full and fair determination of the disputed issues of foreign law. (Matter of Doe, 17 Misc. 3d 1017.) The Surrogate further stated: “An examination of the opinions of all courts in that case, through the United States Supreme Court, indicates no appearing for the infant who was the subject of the adoption proceeding.” The Surrogate’s conclusion that the appointment was “nonmandatory” is based on no strong New York precedent and is inconsistent with the doctrine of the best interests of the child.
C. Application of the Best Interests of the Child Doctrine Implies the Necessity of a Guardian Ad Litem
The Surrogate deprived the child of a diligent, unbiased, and objective advocate to assist the court in determining and protecting his best interests. (Bluntt v O'Connor, 291 AD2d 106, 118.) The subsequent absence of a guardian was a continuing defect which fatally infected the most recent decision. (See Matter of Elianne M., 196 AD2d 439, 440; Matter of Rebecca B., 227 AD2d 315.) The gist of the Surrogate's decision was that “the offered no specialized legal knowledge or expertise on the particular issues of foreign law to be adjudicated.” By phrasing the impending trial as a matter of foreign law, the Surrogate reasoned that the guardian would have no articulable concerns. However, as is clear in the 2008 opinion, Doe 5, the central issue was not the state of the Cambodian law of adoption, but rather which of the putative adoptive parents deserved custody given each’s prior conduct. No New York court would ever assert that Cambodian law would absolutely rule on the issue of permanent placement, given the American loci of the putative adoptive parents and the child. Therefore, elimination of a guardian was unjustified given the duty of a court to protect the best interests of the child within the context of that foreign law.
The issue is not whether the child is technically a party to the Surrogate’s proceedings, but whether the adoption decision reflected the best interests of the child. The Surrogate’s fixation on Cambodian law, with all due respect, severely misses the mark. If Cambodian law permitted the sale of children as sex slaves, no American court would determine the case on the basis of the act of state doctrine. Similarly, if Cambodian law only permitted the adoption of a child by a father, notwithstanding the best interests of the child as perceived by an American court, the result would be the same. It cannot be argued that if Cambodian law militates against the best interest of the child, it should be honored by any New York, or for that matter, any American court. The Surrogate must undertake this crucial analysis, aided, given the contentious context of the litigation, by a guardian ad litem for the adoptee.

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