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THE SUPPORT MAGISTRATE DID NOT ENSURE THAT FATHER KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY WAIVED HIS RIGHT TO COUNSEL IN THIS CHILD SUPPORT PROCEEDING; ORDER OF COMMITMENT REVERSED (SECOND DEPT).

The Second Department, reversing Family Court’s order of commitment for father’s failure to pay child support, determined the Support Magistrate did not ensure that father’s waiver of counsel was knowing, intelligent and voluntary:

… [A]t the beginning of the hearing, the Support Magistrate asked the father what he “want[ed] to do about legal representation,” to which the father responded, “I’m speaking for myself at this point.” The Support Magistrate did not make any further inquiries regarding counsel. The Support Magistrate also failed to advise the father about the potential pitfalls of proceeding pro se. Thus, the Support Magistrate failed to conduct a sufficiently searching inquiry to ensure that the father’s waiver of his right to counsel was knowing, intelligent, and voluntary … . Under these circumstances, the father was deprived of his right to counsel at the hearing. Contrary to the mother’s contention, this violation was not cured by the fact that the father was later represented by assigned counsel during the confirmation hearing … . Matter of Sylvester v Goffe, 2022 NY Slip Op 01028, Second Dept 2-16-22

 

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