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FAMILY COURT DID NOT ENSURE FATHER’S WAIVER OF HIS RIGHT TO COUNSEL IN THIS CUSTODY MODIFICATION PROCEEDING WAS KNOWING, INTELLIGENT AND VOLUNTARY; NEW HEARING ORDERD (SECOND DEPT).

The Second Department, ordering a new modification of custody hearing, determined Family Court did not ensure that father’s waiver of his right to counsel was voluntarily and intelligently made:

In order to determine whether a party has validly waived the right to counsel, a court must conduct a “searching inquiry” to ensure that the waiver has been made knowingly, voluntarily, and intelligently … . “While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … . “For example, the court may inquire about the litigant’s ‘age, education, occupation, previous exposure to legal procedures and other relevant factors bearing on a competent, intelligent, voluntary waiver'” … . Here, the Family Court did not conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowingly, voluntarily, and intelligently made … .

… “[T]he deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party’s position … . Matter of Lherisson v Goffe, 2021 NY Slip Op 05856, Second Dept 10-27-21

 

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