By Sara
Stout Ashcraft
Daily Record
Columnist
Lawyers
practicing in Family Court probably run up against pro se parties more often than attorneys in any other field. Of
course, Family Court is set up to be user-friendly to the unrepresented party. However,
it can be extremely frustrating for a lawyer representing one party to have a
self-represented party on the other side. The usual court procedure tends to
bog down as most pro se parties do
not have much understanding as to how courts work — occasioning confusion over
such things as trial procedure, evidence and trials, as well as even knowing
when and how to settle a case.
Recently
the Kings County Family Court dealt with a particularly persistent party
representing herself. In Debbie E. v.
S.F. and T.E. [2019 NY Slip Op 50705(U), 63 Misc. 3d 1225(a)], Petitioner
(maternal grandmother) made a motion requesting sanctions against Respondents’ (child’s
parents) counsel. Respondents cross-moved for costs and sanctions against the
Petitioner.
In
February 2018, the Petitioner, a paralegal in family and matrimonial law, filed
for grandparent visitation with her seven-year-old grandson. The Respondents
filed a motion to dismiss, claiming that Petitioner lacked standing as she had
a “tenuous relationship” with her grandson, was “openly hostile and uncivil
toward them, and did nothing to pursue a relationship with her grandchild since
December 2015.” The Petitioner then cross-moved for temporary visitation and “for
costs and sanctions against [Respondents’] ... former counsel.” The Family
Court found that Petitioner did have standing for visitation, “granted her
temporary Observation and Evaluation (O & E) visits with him under the
auspices of Comprehensive Family Services (CFS), and scheduled a Feb. 28, 2019
hearing on whether her visitation would be in the best interests of the
Child.”
After
that, Petitioner “subsequently engaged in a campaign of vexatious letter
writing, telephone calling, repeated court appearances and motion practice
tending to smear and annoy the parents and their counsel.” Petitioner “filed at
least six motions in less than nine months seeking, among other things,
anticipatory contempt against
[Respondents] for their alleged failure to comply with the O & E
visits, discovery of the mother’s personal psychologist’s records, a stay of
court-ordered discovery proceedings, and sanctions for allegedly frivolous
conduct by [Respondents’] former and current counsel. … The latest Motion No. 6
again sought the continuation of the O & E visits with the child, despite
already having obtained two Orders for 12 visits on February 4, 2019 and March
1, 2019.”
Following
“long and contentious oral argument” on that motion, the Court “reiterated the
continuation of the O & E visits … permitted [Petitioner] to give small
gifts and take photographs of the child, and set out a discovery schedule.” Rather
than comply with schedule for discovery, Petitioner “refused to answer any of
the interrogatories/discovery demands and immediately sought to stay all
discovery” by appealing the Order to the Second Department Appellate Department.
Said appeal was denied.
With
Motion No. 8, the Petitioner sought an Order granting her (again) visitation
every Sunday “at her convenience and with a selected evaluator.” She also
sought sanctions against Respondents’ counsel for frivolous conduct. Petitioner’s
supporting affidavit “pointed to all the perceived procedural and stylistic
defects in counsel’s filing of his papers and again provides a painfully
detailed factual recitation of her perceptions and actions during the O & E
visits. … it is only in the last paragraphs of her 12-page affidavit that she
conclusorily [sic] asks for sanctions
against … counsel.” Respondents countered by moving for sanctions against
Petitioner for $6,000 in fees and costs for “her frivolous and harassing
motions,” and also for “direction that the Clerk of the Court” not accept
further motions from the Petitioner without prior court approval.
Perhaps
not surprisingly, the Court agreed with the Respondents. Pointing out that the
Respondents showed “a pattern of vexatious, duplicative and frivolous conduct”
by the Petitioner, including filing “six motions requiring over 12 court appearances
in less than nine months of litigation,” which was intended “to delay and
prolong the matter, if not to harass and bully the [Respondents] and their
counsel.” The Court ordered costs and sanctions against the Petitioner and
“prohibited [Petitioner] from filing any new writs, motions or petitions in the
Family Court of New York State without approval of the presiding judge of the
court in which the action or proceeding is to be filed.”
Sara
Stout Ashcraft is a partner in Ashcraft Franklin & Young, LLP. She
concentrates her practice in the areas of matrimonial and family law.
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