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Mother Never Waived Her Right to Counsel in Custody Proceedings–Denial of Mother’s Petition for Custody Reversed

The Second Department determined that the denial of mother’s petition for custody (and the grant of father’s petition) must be reversed because mother was denied her right to counsel. Three attorneys assigned to represent mother had been relieved. Family Court refused to assign another attorney and told mother to hire an attorney or proceed pro se. Although Family Court informed mother of the dangers of representing herself, mother never formally waived her right to counsel. Mother represented herself in the custody proceedings:

The Family Court Act enumerates “[e]ach of the persons [who] has the right to the assistance of counsel” (Family Ct Act § 262[a]). One such person is “the parent of any child seeking custody . . . in any proceeding before the court in which the court has jurisdiction to determine such custody” (Family Ct Act § 262[a][v]…). “[A]n indigent party has a right to assigned counsel in a Family Court custody proceeding” … . Where, as here, an indigent party has a right to assigned counsel, “this entitlement does not encompass the right to counsel of one’s own choosing” … . An application by an indigent person for the assignment of new counsel may be granted only “upon [a] showing [of] good cause for a substitution” … . “Good cause determinations are necessarily case-specific and therefore fall within the discretion of the trial court” … . * * *

A party to a Family Court proceeding who has the right to be represented by counsel may only proceed without counsel if that party has validly waived his or her right to representation … . “To determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a searching inquiry’ to ensure that the waiver is unequivocal, voluntary, and intelligent” … . “The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding is a denial of due process which requires reversal, regardless of the merits of the unrepresented party’s position” … .

Here, the record does not demonstrate that the mother waived her right to counsel … . Matter of Tarnai v Buchbinder, 2015 NY Slip Op 07671, 2nd Dept 10-21-15

 

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