When a court conducts a hearing in the absence of a defending party, an attorney who appears for that party may face a dilemma: whether to participate in the hearing, and thereby waive the client’s right to move based on excusable non-appearance to vacate a finding and re-open the hearing, or not participate and thereby forgo the opportunity to challenge the petitioner’s case. There are considerable costs to each option.
The long-standing practice in New York City Family Courts has been for attorneys representing parents accused of child abuse and neglect to decline to participate in hearings in the absence of their clients. The rationale for this practice has been that the attorney has an obligation to keep open the possibility of moving to vacate any finding made by the court at the conclusion of the hearing, a possibility that may be precluded if the attorney participates.
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