A child between 17 and 21 who has left home and refuses to obey parents’ reasonable commands can be considered “emancipated” by a court. In that case, child support might not have to be paid. But what if the child is 14 but thinks like a 17 year old?
Clarence M. v Martina M., 2020 NY Slip Op 20108, Decided on May 11, 2020, Supreme Court, Kings County, Sunshine, J.:
This Court is called upon to determine if it is appropriate for a 14-year-old child who has requested to see a report prepared by a forensic evaluator related to therapeutic visitation. The parties were divorced by Judgment of Divorce on April 12, 2019. There was an extensive [*2]stipulation on the eve of trial on the issue of custody. The parties agreed to joint custody with specific periods of parenting time for both parents. Thereafter and at present there has been extensive litigation post- judgment inter alia on the issue of a change of custody and allegations that the child who is 14 years old is refusing to see the Plaintiff- Father. There are also applications pending on the issues of Contempt which are the subject of a separate motion. The plaintiff is represented by privately retained counsel. The defendant and the child have been appointed counsel pursuant to Section 35 of the Judiciary Law. On consent Dr. Kelly Sykes P.H.D was appointed by the Court on October 24, 2019 “to coordinate and provide family therapy on allegations of alienation and the alleged resistance and refusal of [Redacted] to follow the schedule of parental access set forth in the Judgment of Divorce”
Plaintiff filed an emergency order to show cause [motion sequence #15] dated March 9, 2020 seeking the following relief: “(1) Determining that the subject children are not parties to this litigation with fundamental rights to automatically review copies of the pleadings, motion papers, forensic reports, other mental reports or status reports, affidavits, affirmations, statements of net worth and / or other litigation documents without leave of court which shall only be granted on application after an in camera review upon a showing that such disclosure is reasonably necessary for the child’s attorney to do their job pursuant to 22 NYCRR § 7.2 and that such disclosure is not contrary to the child’s best interest; and (2) Determining that the subject children are not entitled to and shall be prohibited from directly reading or receiving copies of the reports and other written communications from Dr. Kelly Sykes concerning the status and progress of family therapy in this matter as such disclosure is not in their best interest; and (3) For such additional relief as this court may deem just and proper.
The role of the Attorney for the Child is embodied in 22 NYCRR § 7.2 Function of the Attorney for the Child promulgated by order of the Chief Judge dated October 17, 2007 states as follows:
(a) As used in this part, “Attorney for the Child” means a[n attorney] appointed by family court pursuant to section 249 of the Family Court Act, or by the supreme court or a surrogate’s court in a proceeding over which the family court might have exercised jurisdiction had such action or proceeding been commenced in family court or referred thereto. (b) The Attorney for the Child is subject to the ethical requirements applicable to all lawyers, including but not limited to constraints on ex-parte communication; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the litigation.(c) In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the Attorney for the Child must zealously defend the child.(d) In other types of proceedings, where the child is the subject, the Attorney for the Child must zealously advocate the child’s position. (1) In ascertaining the child’s position, the Attorney for the Child must consult with and advise the child to the extent and in a manner consistent with the child’s capacities and have a thorough knowledge of the child’s circumstances. (2) If the child is capable of knowing, voluntary and considered judgment, the Attorney for the Child should be directed by the wishes of the child, even if the Attorney for the Child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.(3) When the Attorney for the Child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the Attorney for the Child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the Attorney for the Child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position.(effective October 17, 2007)
Plaintiff’s Contentions Plaintiff argues that on March 5, 2020 he was informed that the Attorney for the Children shared some of the information in Dr. Sykes reports with the parties 14-year-old daughter. The Plaintiff further argues that after the child was given the information from the report that the child’s attitude towards the Plaintiff and therapy greatly shifted. Plaintiff contends that showing the child any information provided by Dr. Sykes intended for the parties, the lawyers and the court is not appropriate or in the child’s best interest. Plaintiff further contends that no litigation documents should be shown to the children, absent courts permission and only then after an in-camera review and a showing that the disclosure is necessary to meet the obligation under 22 NYCRR § 7.2 and in the child’s best interest.
Counsel asserts that there has been a “regression” described by Dr. Sykes after a visit occurred once the child learned of what was in the report, that should not have occurred and cannot be ignored. The Plaintiff also states that it is no mere coincidence that after obtaining information from the report that the child now “hates” the therapist. The Plaintiff also brings to the Court’s attention that Dr. Sykes in the March 9, 2020 report recommends that the child not be permitted to read the reports as they are written and intended for adults. The Plaintiff firmly believes that therapy with Dr. Sykes must continue, the Defendant must continue to bring the child to the sessions and any writings provided by Dr. Sykes should not be shared with the children without court permission
The Plaintiff asserts that pursuant to 22 NYCRR § 7.2 (d) (1) that there is no obligation for the Attorney for the Children to show any litigation documents to their clients as children are not parties to the litigation. Plaintiff believes that in this matter the child’s position can be zealously advocated by the Attorney for the Child without the need to share the litigation documentation with the child and sharing the documents with the child is “developmentally inappropriate.”
He further argues that “a child is not free to discharge their attorney, proceed pro se, select a different attorney or watch court proceedings” and therefore there are already clear limitations to the relationship between the children and the Attorney for the Children [FN1] .The Plaintiff contends that the cases put forth by both the Attorney for the Children and Defendant are not on point and easily distinguishable from the instant issue.
Plaintiff states that should the Attorney for the Children seek in the future to show any of the litigation documents to the children that she be required to seek the permission of the court upon a showing that disclosure of the litigation documentation is reasonably necessary under 22 [*3]NYCRR § 7.2 and is in the best interest of the children.
Defendant’s Contentions Defendant argues that the doctrine of parens patriae powers have been exclusively applied to limit and/or define parent control over and access to their children and therefore the Defendant argues that the extension of and use of the doctrine of parens patriae beyond the protection from parents is an unauthorized and unlawful use of the doctrine when applied to a child’s attorney client relationship.
The Defendant contends that Federal and States Constitutions generally bar injunctions against speech and any injunction which operates as prior restraint on expression bears “heavy presumption” against its constitutional validity. The Defendant asserts that the Court has the power of parens patriae to ensure that the Plaintiff and the Defendant do not make any remarks to the children that are against the children’s “best interests”. However, the Defendant further asserts that it is not the Court’s function to prevent children, who have their own interests, of the effective representation of counsel including but not limited to the ability to fully participate, right to be fully informed, and ability to communicate openly between child and attorney as 22 NYCRR § 7.2 clearly states that the Attorney for the Children must be fully informed and zealously defend and directly advocate the clients position if the child is of knowing and voluntary judgment.
The Defendant contends that the Attorney for the Children and not the Court is in the superior position to know what the children’s capabilities are and it is the Attorney for the Children who must make the proper determination as to whether the children are to be fully informed or not regarding the contents of therapeutic supervised reports. She contends that otherwise the Court would be interfering in the rights and relationship of the children and their attorney and would render the Attorney for the Children unable to zealously advocate for their clients without providing the children with the best available information in light of the children’s’ capabilities and ability to freely form her own strategy with her attorney. The Defendant asserts that is it not the Court’s duty to interfere with the relationship between child and attorney by ordering the Attorney for the Children to undermine and withhold information from their clients who is owed a duty of loyalty regardless of whether the Plaintiff or Defendant believes that the information in the report may harm a child in some unknown way.
The Defendant posits that there is not anything in the reports by Dr. Sykes that would pose a threat to the child or is beyond the capacity of a fourteen-year-old child and would require the protection of the Court. Defendant contends that there was no damage done to the child and that even if the child’s attitude does change after reading the report, it ignores the fact that the parents are able to freely change their behavior as a result of the reports as well. The Defendant further asserts that there was no showing of harm to the child due to the report and that the reports are there to provide insight to the family and provides suggestions on how to improve the family dynamics.
The Defendant submits that the Court relying on either the Plaintiff, the Defendant or the Court appointed expert’s opinion on this issue would be an improper deferral to the recommendations of the Court appointed expert. The Defendant further submits that it is the Court’s duty alone to determine if the Court has the power to interfere with the Attorney for the Children and the children’s relationship pursuant to parens patriae regardless of the child’s constitutional rights to an effective attorney and the ability to freely communicate with that attorney pursuant to the ethical rules that incorporate the United States Constitutional protections [*4]of the First and Sixth Amendments.
Attorney for the Children’s Contentions The Attorney for the Children argues that the Plaintiff’s application must be denied as the relief sought would create an interference between the Attorney for the Children and the Child which would prohibit the Attorney for the Children from representing the child’s interest in the proceeding. The Attorney for the Children further argues that if the Plaintiff’s relief is granted it would not be in the best interest of the child. The Attorney for the Children also contends that their would-be far-reaching effects empowering litigants to interfere with the Attorney for the Children and children’s relationship, when parents do not agree with the position of the child and such interference could render the role of Attorney for the Children meaningless.
The Attorney for the Children states that the child’s meaningful participation is vital and that the child’s position must be protected. The Attorney for the Children further states that the child does not wish to continue in supervised therapeutic visitation and that the child expects the Attorney for the Children to zealously advocate for those visitations to be terminated. Counsel has determined that the child who wants to read the reports of Dr. Sykes is mature, insightful and suffers from no incapacity and therefore cannot substitute judgment for a competent 14-year-old child and deserves to be active and involved with the case to help advocate for what the child wants.
The Attorney for the Children further contends that she based her decision to allow the child to read the report on the age, maturity and the fact the child asked to see the report that there is no reason to not share the report with the child to come up with an appropriate litigation strategy. Counsel also argues that supervised visitation session reports that the child was included in are very different from those of a forensic report which often contain sensitive information. On behalf of the child counsel argues that in order to achieve the child’s goal of terminating the therapeutic supervised visitation with the Plaintiff and Dr. Sykes and she cannot reasonably prepare without discussing the reports with the child.
In referencing the action by the Administrative Board of the Courts on October 4, 2007, the Administrative Board of the Courts approved the Statewide Guardian Advisory Committee’s Summary Responsibilities of the Attorney for the Child, noting that the duties of Counsel will vary based on the circumstances surrounding the case which include consulting, advising and evaluating the legal remedies pursuant to the child’s objectives. Counsel posits that without thorough consultation and preparation with the child she cannot effectively prepare and zealously argue on behalf of the child.
Counsel further argues that all attorneys review litigation documents and reports with clients and the Attorney for the Children should also duly prepare and review documents with their client to challenge contents and accuracy of the reports prior to advancing the child’s position. Counsel contends that it would be malpractice to not inform their clients and must inform their clients in an age-appropriate way based on age and maturity which she did in this case and it is unreasonable to expect attorneys to move for in camera review of documents attached to a motion prior to the attorney discussing it with their client and would be a waste of judicial resources.
The Attorney for the Children states that whether an Attorney for the Child shows, reads or summarizes motion papers for a child is not a matter for the Court to involve itself. The Attorney for the Children also contends that not every child needs to see every document and most children do not wish to see the documents but here the child specifically requested [*5]information regarding Dr. Sykes report, “[Redacted] directly asked your Affirmant to view the reports in my office under my supervision in an effort to correct any misstatements she believed may be present in the reports.” The Attorney for the Children submits that the Reports by Dr. Sykes and motions pending in this proceeding are important as the child has an interest in the outcome and not sharing such information with the child could make the role of Attorney for the Children “meaningless”.
As it relates to the Court’s role in parens patriae, counsel asserts that if the Court grants Plaintiff’s application it would be an improper exercise of the Courts parens patriae powers as it would not be in the best interest of the child and it is the Courts duty to make rulings on the best interest of child but that does not extend the right to interfere with the Attorney for the child and child relationship.
As to the issue of access to forensic report counsel concedes that she does not suggest that every child be given or shown every report, but that Attorneys for the Children should be able to make that determination case by case and client by client as every child and case is different. The Attorney for the Children argues that part of providing consultation as an Attorney for the Child is to make the judgment as to what is appropriate for the child given age, maturity and insight. The Attorney for the Children in arguing the parameters of Rule 7.2 contemplates that Attorneys for Children should have the skills and ability to consult with children in age appropriate ways and allows Attorneys for the Children to substitute judgment contrary to the clients wishes when necessary and that she contends that the rule knows that the Attorney for the Children must make complicated analysis of each child’s circumstances. The Attorney for the Children in meeting this obligation that the Rule does not specify at which age Attorneys may not substitute judgment as it left to the discretion of the Attorney for the Children based on an analysis of each child’s capacity and circumstances.
The Attorney for the Child respectfully requests the denial of Plaintiff’s Motion Sequence #15.
Parens Patriae This Court must determine if the doctrine of parens patriae is superseded by Rule 7.2 “Function of the Attorney for the Child, of the Rules of the Chief Judge when a determination is made as to what information from a therapeutic visitation report is shared with a 14 year old child during a dispute over the issue of visitation. As stated by Justice Cardoza in writing for a unanimous New York Court of Appeals:
“The chancellor in exercising his jurisdiction upon petition does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other or indeed against any one. He acts as parens patrioe to do what is best for the interest of the child. He is to put himself in the position of a “wise, affectionate and careful parent” (Queen v. Gyngall, 1893, 2 Q. B. D. 232, 238), and make provision for the child accordingly. He may act at the intervention or on the motion of a kinsman, if so the petition comes before him, but equally he may act at the instance of any one else. He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights “as between a parent and a child” or as between one parent and another (Queen v. Gyngall, 1893, 2 Q. B. D. 232, 238). He “interferes for the protection of infants, qua infants, by virtue of the prerogative which belongs to the Crown as parens patrioe” (Matter of Spence, 2 Phillips, 247, 248).The plaintiff makes no pretense of invoking this paternal jurisdiction. We are not advised by his complaint whether a division of the custody will tend to the benefit of his sons or to their detriment. He invokes the jurisdiction of a court to settle a dispute. Equity does not concern itself with such disputes in their relation to the disputants. Its concern is for the child.”
(See:Finlay v. Finlay, 240 NY 429, 148 N.E. 624 [Court of Appeals 1925]).
This Court recognizes the importance of the role of the attorney for the child and the right of the child’s wishes to be considered. Recently the Appellate Division First Department held in Matter of Byron M. v Sasha A.: “There is a rebuttable presumption that visitation by a noncustodial parent is in the child’s best interest and should be denied only in exceptional circumstances” (see Matter of Byron M. v Sasha A., 2020 NY Slip Op 02243 [1st Dept. 2020]; Matter of Granger v Misercola, 21 NY3d 86, 90-91, 990 N.E.2d 110, 967 N.Y.S.2d 872 [Court of Appeals 2013]; Matter of Ronald C. v Sherry B., 144 AD3d 545, 546, 42 N.Y.S.3d 2 [1st Dept 2016]; Matter of Nathaniel T., 97 AD2d 973, 974, 468 NYS2d 768 [4th Dept 1983]). In Matter of Byron M. (2020 NY Slip Op 02243 [1st Dept. 2020]). the presumption that petitioner and the child should visit with each other was not rebutted as there was no evidence in the record that visitation with petitioner would place the child in any physical danger or that it would harm her by producing serious emotional strain or disturbance. Nor are there exceptional circumstances to support a finding that petitioner forfeited his right to visitation.
Contrary to the argument by the attorney for the child, the Family Court considered the child’s position after conducting an in-camera interview. While the child’s wishes are some indication of what is in her best interests and “are entitled to great weight” (Melissa C.D. v Rene I.D., 117 AD3d 407, 408 [1st Dept 2014] [internal quotation marks omitted]), those expressed wishes are only one factor to be considered and do not dictate a certain result in determining the best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 173 ).
The Court in Byron (2020 NY Slip Op 02243 [1st Dept. 2020]), clearly indicated that the child’s expressed wishes while important are only one factor to be considered and “do not dictate certain result in determining the best interest of the child”. In the case at bar the child’s desire to read the report and defeat the application for visitation are also but one factor to be considered in allowing the child to read the report.
This Court determines that that application must be denied in the child’s best interest, notwithstanding that she is 14 years old and has a right to be heard. It is well established that a child at the age of 14 has the right to have their voice heard in Court but that does not give the child unfettered access during the process. She has voice in the process and that voice will be heard, but there are limitations. For example, the child does not testify in open court but through an in-camera interview, does not sit next to her attorney for the trial nor does she personally appear at oral arguments. The child’s testimony is sealed pursuant to CPLR 4019 and cannot be [*6]viewed by either parents or their attorneys. These limitations are designed to protect the child. So is the limitation herein imposed by the Court that under the circumstances presented she may not read the report.
In the case at bar the Court believes it is in the children’s best interest to not receive a copy of the therapeutic supervised visitation reports and should not be able to read the report personally .It has not been denied that the child in this case has allegedly used specific quotes from the report to question the therapist and to negatively impact the therapeutic supervised visitation with the non-custodial parent. Dr Sykes in the report dated March 9, 2020 stated that the child had come in with a list of questions after reading the report dated January 20,2020 and wanted to clarify certain things that she believed the therapist had gotten wrong. Dr. Sykes also commented that that child loves UNO but after reading the report from January 20, 2020 refused to play with the Plaintiff and believes that may be because of what was said in the report. Dr. Sykes recommends “Given [redacted]’s age it is recommended that she not be allowed to read any written updates. These updates are written and intended for all the adult key stakeholders. Going forward, I will have meetings with [redacted] and her parents separately or together whenever a change in the T[herapeutic] S[essions] is indicated. These meetings will be used to offer my feedback and to hear from everyone their impressions of progress.”
The Second Department in Agur v. Agur (32 AD2d 16, 298 N.Y.S.2d 772 [2nd Dept. 1969]) held that the Court has the role of deciding what is in the best interest of the child and Matter of Granger v Misercola (21 NY3d 86, 90-91, 990 N.E.2d 110, 967 N.Y.S.2d 872 [Court of Appeals 2013]) ruled that visitation with the non-custodial parent is in the best interest of the child unless there are exceptional circumstances, which according to Dr. Sykes there is nothing serious barring the relationship or anything harmful regarding the relationship between the child and the Plaintiff that she has observed [FN2] . Thus, any action by the Attorney for the child which could defeat the state of New York Law as it relates to the resumption of visitation must be met with circumspect in as much as the child while a participant in the process must be viewed as a child who does not have the same emotional capabilities and development at 14 as an adult. She is still an adolescent and revealing to her the diagnostic information related to adolescents and then using for the purpose of attempting to manipulate the process of visitation defeats this Court’s ability to protect the child in paren patriae.
It is this Court’s opinion that the role as parens patriae is to ensure that the child’s best interests are always a priority barring special circumstances that are not before the Court at this time in this case. Based on the Court’s long history with this case the Court is fully familiar with this matter and is cognizant of the position stated by the therapist who is conducting the therapeutic supervised visitation and the child’s attempt at manipulating the therapist and the visitation, it is not in the best interest of the child to be given or read the reports provided by Dr. Sykes on the supervised therapeutic visitation.
This Court has considered the attorney for the child’s position, but the Court will not empower this child as if they were the parent themselves. The children of divorce are still children and the parents are still the parents. It is the courts role in parens patriae to protect the child and if that protection rises to the level of preventing the child from having access to a [*7]report that is being written for adults to help the child’s reunification with a parent this Court is willing to do so. The child is still 14 years old and clearly has the right to articulate a position. The appointment of the therapeutic visitation forensic was on consent. The purpose of the appointment was to accomplish re-unification. If it is the child’s desire to thwart that re-unification, what then is the role of the court in fostering reunification.
Role of the Attorney for the Child
The Court recognizes and appreciated the position put forth by the child’s attorney and the Court understands the attorney’s obligation. In fact the Second Department recently noted in the Matter of David v LoPresti, that “Throughout the course of the proceedings on the petition, the attorney for the child failed to advise the Family Court of, much less advocate for, the position of the then 10-year-old child. The Rules of the Chief Judge (22 NYCRR 7.2[d]) require that, except in certain proceedings not relevant here, the attorney for the child “zealously advocate the child’s position.” (See, Matter of David v LoPresti, 176 AD3d 701, 111 N.Y.S.3d 356 [2nd Dept 2019] Indeed, “[i]n establishing a system for providing legal representation to children, the Family [Court] Act identifies, as one of the primary obligations of the attorney for the child, helping the child articulate his or her position to the court” (See Matter of David v LoPresti, 176 AD3d 701, 111 N.Y.S.3d 356; [2nd Dept. 2019] Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093, 882 N.Y.S.2d 773 [3rd Dept. 2009]; see Family Ct Act § 241). Nothing herein will prevent her from advocating her client’s position and that is why the rule protects the advocate — the lawyer but does not anywhere abrogate the Court’s role in parens patria. The court rejects plaintiff’s request that permission should be sought related to future communications between the child and her attorney. That would interfere with the relationship and this Court’s decision herein is on a very narrow issue, defined by the unique circumstances herein.
As noted in Matter of Newton v McFarlane (174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019]) “Substantively, and more importantly, it cannot be denied that a teenaged child has a real and substantial interest in the outcome of litigation between the parents as to where the child should live and who should be entrusted to make decisions for the child. It seems self-evident that the child is the person most affected by a judicial determination on the fundamental issues of responsibility for, and the environment of, the child’s upbringing. To rule otherwise would virtually relegate the child to the status of property, without rights separate and apart from those of the child’s parents” (See; Matter of Newton v McFarlane, 174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019] “[A] child is a person, and not a sub person over whom the parent has an absolute possessory interest. A child has rights too, some of which are of . . . constitutional magnitude.”( See; Matter of Newton v McFarlane, 174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019]; Quoting: Matter of Bennett v Jeffreys (40 NY2d 543, 546, 356 NE2d 277, 387 NYS2d 821 ): “Among those rights is the child’s right to have his or her best interests, and his or her position concerning those interests, given consideration by the court.” See; Matter of Newton v McFarlane, 174 AD3d 67, 103 N.Y.S.3d 445 [2nd Dept. 2019].
The Court fully understands the position by the Defendant and Attorney for the Child that the Child like any other person represented by an attorney is entitled to a zealous advocate and the opportunity to have their position heard, however the Court also understands that the child does not wish to visit with the Plaintiff which has been made clear by the Attorney for the Children. Not allowing the child to read the therapeutic supervised visitation reports in this case [*8]is not going to render the Attorney for the Child unable to take the child’s position, instead it has possibly strained the relationship between the Plaintiff and the Child by giving the child the opportunity to try and hinder or manipulate the therapeutic visitation sessions. The Attorney for the Children has been a zealous advocate for the child and has made the child’s wishes and voice heard in Court regarding the visitation and therefore in this case, not allowing the child to read the report or be given a copy of the report will not hinder the Attorney for the Children’s ability to advocate for the child nor does it interfere with the Childs constitutional right.
This Court is not restraining anyone’s rights to be heard during this proceeding. The Attorney for the Child has every right to speak and participate in the process on behalf of the child and advocate for what the child wants. This Court not allowing the child to physically read the reports provided by the therapist is not an injunction or restraint on expression, the Attorney for the Child has made the child’s position extremely clear throughout the process.
The Court must strike a balance between the role of the attorney for the child and the Court’s role in paren patriae. The Court disagrees that when Rule 7.2 was enacted that it was the intent to abrogate the role of the Court in paren patriae until the decision was made.
Conclusion The Plaintiff’s Motion Sequence #15 is granted to the extent indicated herein. The Attorney for the Children is not to show the Dr. Sykes reports to the children. The Attorney for the Children may discuss the reports in age appropriate terms without directly quoting the report.
The role of the Court as articulated by Justice Cardoza in 1925 to protect children has not changed except that the chancellor referred to is now a Judge and the reference to “he’ is now “she or he” when referring to the judicial officer.
This shall constitute the decision and order of the court.
Footnote 1:The Court does need to reach a conclusion on the merits of said allegation as they are not germane to this case.
Footnote 2:The Court recognizes that this is the opinion of the professional and the ultimate determination of this issue can only be made by the Court.”