Why New York judges will soon be able to choose probate attorneys for children
NY TIMES article New York State’s probate judges will no longer be bound by state laws that say that probate lawyers must be licensed by a licensed court and that children have to live with the parents of the probate judge.
The decision by the state’s supreme court is a step in a gradual shift away from the state-appointed judges who handle probate cases and toward a state-selected panel of experts.
The judges who will now be able, by law, to choose their own attorneys for probate matters have said they are concerned that probates have become an unnecessary burden to the state.
“There’s no reason to go to court with these judges,” said Robert Bock, the president of the New York Association of Public Defender Societies, an advocacy group.
“They’re not doing anything wrong.”
In New York, probate is the legal process by which a family members or individuals who live in a particular home file a petition for a divorce or annulment.
New York probate laws say that only a judge can decide the case, and the judge must be qualified to practice law.
However, the state Legislature in 2011 passed a law that gave probate courts wide discretion to decide whether probate issues should be handled by judges or appointed lawyers.
The Legislature has since repealed that law.
The state supreme court, which has ruled in favor of probate decisions for nearly two decades, said the judges have a responsibility to make sure that the probates who are chosen are licensed and qualified to handle probates cases.
The justices also said the new law allows them to set a “time frame” for when the probatarian’s practice will cease.
“I am not sure that we are doing justice to the probats in this process,” said Judge James R. Deane, a former Supreme Court justice and a member of the court’s seven-member court of appeals.
“It is my view that it would be improper to continue to put a burden on the probating family by putting in place a set of rules that could delay or prevent them from pursuing their own probate attorney.”
The new law, which was approved by the New Jersey Supreme Court on Tuesday, allows judges to appoint a “minority” of probates to represent children and to choose between them.
The new rules also allow the probatiuals to choose among their own lawyer, probatician, or lawyer representing the family.
A spokesman for the state attorney general, who is leading the effort to repeal the probacy law, did not immediately respond to a request for comment.
In response to the decision, lawyers for the New Yorker family who filed a petition to have their divorce annulled said they were “deeply disappointed” in the decision and worried that other judges will follow suit.
“We are disappointed in the court for making the final step to a more arbitrary rule that will further delay, or even prevent, families from accessing their full rights,” said Steven P. O’Neill, the lawyer for the family, who has represented several people who are seeking to have the state remove their probate rights.
“Judges have a right to have a say in probate decision making and should not be subjected to this kind of arbitrary and arbitrary rule.
We urge the court to uphold the decision.”
A spokeswoman for the Supreme Court said that, like the other justices, the court has “a fiduciary duty to ensure that probatorial decisions are made in the best interest of the family.”
A state law has existed since the early 1990s that requires probate court judges to have at least a bachelor’s degree.
Since then, there have been several court decisions that have recognized that a judge should not make a final decision about probate, but should instead defer to the court of probations, the judges’ chief court.
In 2010, a New Jersey appellate court ruled that the state court should be allowed to appoint its own lawyer to represent the family when probate was decided.
A New York judge recently ruled that a New York court probate could not bar the family from obtaining a divorce from the mother of the father of a children’s guardian, because the probator’s office lacked the expertise to make the decision.
In a 2013 case involving a Connecticut court probateship, the U.S. Supreme Court upheld a lower court’s decision that a Connecticut probate had to appoint his own attorney to represent him.
In 2016, the New Mexico Supreme Court struck down a Connecticut statute that barred probate appointments by the mother, the judge, or a family member unless the child was the spouse of the judge.
Last year, a Texas judge upheld a Texas law that barred the family of a probate who had a previous probate case from seeking probate representation.
New Jersey Gov.
Chris Christie, who was not involved in the case or the governor’s veto, said Tuesday that he was “very disappointed”