New York Appellate Digest
  • Home
  • About
  • Just Released
  • Update Service
  • Streamlined Research
  • CLE Courses
  • Contact
  • Menu Menu
You are here: Home1 / Appeals2 / ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED...
Appeals, Attorneys, Family Law, Judges

ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT). ​

The Second Department, reversing Family Court, determined: (1) the fact that father filed a petition for custody after custody had been awarded to grandmother did not render father’s appeal of the custody-award to grandmother moot; (2) because the judge failed to make a searching inquiry, father did not effectively waive his right to counsel:

“Once a court makes a finding that extraordinary circumstances exist” to conclude that a parent relinquished his or her otherwise superior right to custody as compared to a nonparent, “that issue cannot be revisited in a subsequent proceeding seeking to modify custody and, thus, such a finding may have enduring consequences for the parties” … . In the order appealed from, the Family Court determined that the requisite extraordinary circumstances existed. This appeal is therefore not academic, among other reasons, because the court’s determination in the order appealed from imposes enduring consequences upon the father that will “impact the scope of the pending proceedings” … . …

Family Court failed to conduct a searching inquiry to ensure that the father’s waiver of his right to counsel was made knowingly, voluntarily, and intelligently … . The hearing record demonstrates that the father did not wish to proceed pro se, but felt that he had no other option but to do so … . To the extent the attorney for the child contends that the court was not required to conduct a searching inquiry because the father did not demonstrate that he was entitled to assigned counsel, this contention is without merit. A court’s obligation to ensure the validity of a party’s waiver of his or her right to counsel extends beyond indigent parties … . In any event, the father indicated that he lacked the funds necessary to afford an attorney, and the court failed to inquire into the father’s financial capability to retain counsel … . The court had an independent obligation to conduct such an inquiry and could not rely solely upon information received from the Legal Aid Society of Orange County regarding whether the father qualified for its services … . Matter of Turner v Estate of Laura Katherine Jane Turner, 2024 NY Slip Op 00193, Second Dept 1-17-24

Practice Point: Here father’s appeal of the award of custody to grandmother was not moot, even though father first filed for custody after the award of custody to grandmother.

Practice Point: A sufficient inquiry into whether a party’s waiver of the right to counsel is knowing, voluntary and intelligent must go beyond whether the party is financially entitled to assigned counsel.

 

January 17, 2024
Tags: Second Department
Share this entry
  • Share on WhatsApp
https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png 0 0 Bruce Freeman https://www.newyorkappellatedigest.com/wp-content/uploads/2018/03/NYAppelateLogo-White-1.png Bruce Freeman2024-01-17 09:05:532024-01-20 17:56:45ALTHOUGH FATHER FILED A PETITION FOR CUSTODY AFTER GRANDMOTHER WAS AWARDED CUSTODY, FATHER’S APPEAL WAS NOT MOOT; THE JUDGE DID NOT MAKE AN ADEQUATE INQUIRY TO ENSURE FATHER’S WAIVER OF COUNSEL WAS KNOWING, VOLUNTARY AND INTELLIGENT (SECOND DEPT). ​
You might also like
Supreme Court’s Finding Respondent Was No Longer Suffering from a Dangerous Mental Condition Reversed
FAILURE TO IDENTIFY AN APPEALABLE ISSUE IN AN ANDERS BRIEF ARGUING THAT THERE ARE NO NONFRIVOLOUS ISSUES WARRANTING APPEAL DOES NOT NECESSARILY REQUIRE THE ASSIGNMENT OF NEW APPELLATE COUNSEL, HERE THE MISSING ISSUE WAS DEEMED INCONSEQUENTIAL AND THEREFORE THERE WAS NO NEED FOR ANOTHER ASSESSMENT BY ANOTHER ATTORNEY (SECOND DEPT).
FORMER LAW FIRM PARTNER WAS ENTITLED TO AN ACCOUNTING; IN DETERMINING THE BUYOUT PRICE UPON THE PARTNER’S WITHDRAWAL FROM THE PARTNERSHIP, THE TERMS OF THE PARTNERSHIP AGREEMENT, RATHER THAN PARTNERSHIP LAW, CONTROL (SECOND DEPT).
LEAVE TO FILE A LATE NOTICE OF CLAIM SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
Declaratory Judgment, Not Mandamus, Was Proper Vehicle for Determining Whether a Town Was Obligated to Repair a Bridge
HERE A SINGLE INCIDENT OF ALLEGED EXCESSIVE CORPORAL PUNISHMENT (GRABBING THE CHILD’S ARM AND SQUEEZING TIGHTLY) WAS NOT SUFFICIENT TO SUPPORT THE NEGLECT FINDING; A NEGLECT FINDING CANNOT BE BASED UPON ALLEGATIONS NOT INCLUDED IN THE PETITION (SECOND DEPT).
DEFENDANT IN THIS SLIP AND FALL CASE PROVED THE AREA WHERE PLAINTIFF ALLEGEDLY SLIPPED AND FELL WAS INSPECTED (AT MOST) AN HOUR AND TEN MINUTES BEFORE THE FALL; THAT PROOF WAS SUFFICIENT TO AWARD DEFENDANT SUMMARY JUDGMENT (SECOND DEPT).
Driver In Middle Car of Chain Reaction Accident Entitled to Summary Judgment

Categories

  • Abuse of Process
  • Account Stated
  • Accountant Malpractice
  • Administrative Law
  • Agency
  • Animal Law
  • Appeals
  • Arbitration
  • Architectural Malpractice
  • Associations
  • Attorneys
  • Banking Law
  • Bankruptcy
  • Battery
  • Chiropractor Malpractice
  • Civil Commitment
  • Civil Conspiracy
  • Civil Forfeiture
  • Civil Procedure
  • Civil Rights Law
  • Condominium Corporations
  • Condominiums
  • Constitutional Law
  • Consumer Law
  • Contempt
  • Contract Law
  • Conversion
  • Cooperatives
  • Copyright
  • Corporation Law
  • Correction Law
  • County Law
  • Court of Claims
  • Criminal Law
  • Debtor-Creditor
  • Defamation
  • Dental Malpractice
  • Disciplinary Hearings (Inmates)
  • Education-School Law
  • Election Law
  • Eminent Domain
  • Employment Law
  • Engineering Malpractice
  • Environmental Law
  • Equitable Recoupment
  • Evidence
  • Fair Credit Reporting Act
  • Fair Housing Act
  • Fair Housing Amendments Act
  • False Arrest
  • False Claims Act
  • False Imprisonment
  • Family Law
  • Federal Employers' Liability Act (FELA)
  • Fiduciary Duty
  • Forcible Touching
  • Foreclosure
  • Fraud
  • Freedom of Information Law (FOIL)
  • Human Rights Law
  • Immigration Law
  • Immunity
  • Indian Law
  • Insurance Law
  • Intellectual Property
  • Intentional Infliction of Emotional Distress
  • Involuntary Medical Treatment and Feeding (Inmates)
  • Judges
  • Judiciary Law
  • Labor Law
  • Labor Law-Construction Law
  • Land Use
  • Landlord-Tenant
  • Legal Malpractice
  • Lien Law
  • Limited Liability Company Law
  • Longshoreman's and Harbor Worker's Compensation Act
  • Malicious Prosecution
  • Maritime Law
  • Medicaid
  • Medical Malpractice
  • Mental Hygiene Law
  • Military Law
  • Money Had and Received
  • Municipal Law
  • Navigation Law
  • Negligence
  • Negligent Infliction of Emotional Distress
  • Negligent Misrepresentation
  • Notarial Misconduct
  • Nuisance
  • Partnership Law
  • Personal Property
  • Pharmacist Malpractice
  • Physician Patient Confidentiality
  • Pistol Permits
  • Prima Facie Tort
  • Private Nuisance
  • Privilege
  • Products Liability
  • Professional Malpractice
  • Public Authorities Law
  • Public Corporations
  • Public Health Law
  • Public Nuisance
  • Real Estate
  • Real Property Actions and Proceedings Law (RPAPL)
  • Real Property Law
  • Real Property Tax Law
  • Religion
  • Replevin
  • Retirement and Social Security Law
  • Securities
  • Sepulcher
  • Sex Offender Registration Act (SORA)
  • Social Services Law
  • Statutes
  • Tax Law
  • Tenant Harassment
  • Tortious Interference with Contract
  • Tortious Interference with Employment
  • Tortious Interference with Prospective Business Relations
  • Tortious Interference With Prospective Economic Advantage
  • Town Law
  • Toxic Torts
  • Trade Secrets
  • Trademarks
  • Trespass
  • Trespass to Chattels
  • Trusts and Estates
  • Uncategorized
  • Unemployment Insurance
  • Unfair Competition
  • Uniform Commercial Code
  • Usury
  • Utilities
  • Vehicle and Traffic Law
  • Victims of Gender-Motivated Violence Protection Law (VGM)
  • Village Law
  • Water Law
  • Workers' Compensation
  • Zoning

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE CONTRACT CALLED FOR LIQUIDATED DAMAGES AS THE “SOLE REMEDY”... THE POLICE HAD ENOUGH CAUSE FOR A LEVEL TWO INQUIRY BUT DID NOT HAVE REASONABLE...
Scroll to top