Family Court’s Finding Father in Default for Nonappearance Reversed

In reversing Family Court’s finding the father in default for nonappearance in a custody and visitation modification proceeding, the Third Department noted that the father’s counsel did not tell the father his appearance was required and the court made no attempt to reach the father by phone:

The nonappearance of a party does not necessarily result in a default, “particularly where counsel appears upon the absent party’s behalf and offers an  explanation for his or her failure to attend”.   The father’s counsel stated that, while the father had elected not  to appear, counsel had  not  informed  him  that his appearance  was  necessary.  Family Court did not challenge the accuracy of that representation and, moreover, made no effort to reach the father telephonically or by other means.  Under these circumstances, Family Court erred in holding that the father’s nonappearance constituted a default …  Matter of Freedman, 514882, 414883, 3rd Dept 6-27-13