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FATHER DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL IN THIS CHILD SUPPORT PROCEEDING; NEW HEARING ORDERED (SECOND DEPT).

The Second Department, reversing (modifying) Family Court, determined father was not provided with effective assistance of counsel in this child support proceeding. The standard for effective assistance is “meaningful representation” because the punishment can (and did) include incarceration:

As the father contends, he was deprived of the effective assistance of counsel at the hearing on the mother’s petition alleging willful violation of the child support order. “[I]n support proceedings such as this one in which a party faces the potential of imprisonment and has a statutory right to counsel, . . . the appropriate standard to apply in evaluating a claim of ineffective assistance is the meaningful representation standard” … . Here, the father’s position at the hearing was that, due to his neuropathy, he was unable to work and had to rely on public assistance for income. Notably, despite having been advised that the father was required to provide a financial disclosure affidavit, tax forms, and certified medical and income records, the father’s counsel failed to procure certified copies of the father’s medical records or records establishing his entitlement to and receipt of public assistance. Moreover, the father’s counsel failed to call any witnesses to testify regarding the father’s neuropathy, to subpoena the father’s treating physician, or to obtain a medical affidavit from the father’s physician. The Support Magistrate made specific reference to the lack of any credible medical testimony, an incomplete financial disclosure affidavit, and the lack of tax returns in finding that the father failed to refute the mother’s prima facie showing of a willful violation of the child support order. The failure of the father’s counsel to obtain relevant medical and financial information constituted a failure to meaningfully represent the father, and thus, the father is entitled to a new hearing on the mother’s petition … . Matter of McCloskey v Unger, 2024 NY Slip Op 05210, Second Dept 10-23-24

Practice Point: Where a party in a child support proceeding faces possible incarceration, the party is entitled to “meaningful representation” by counsel, which was absent here.

 

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