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MOTHER ASKED TO REPRESENT HERSELF IN THIS CUSTODY PROCEEDING AND THEN DEFAULTED; THE ISSUE IS APPEALABLE DESPITE THE DEFAULT; THE JUDGE’S FAILURE TO CONDUCT A SEARCHING INQUIRY UPON MOTHER’S REQUEST TO REPRESENT HERSELF REQUIRED REMITTAL AND A NEW HEARING ON THE PETITION (FOURTH DEPT).

The Fourth Department, reversing Family Court and ordering a new custody hearing, determined Family Court did not conduct an adequate inquiry before accepting mother’s waiver of the right to counsel. The issue was appealable despite mother’s default:

At the mother’s initial appearance, Family Court advised the mother that she had the right to counsel, and the mother indicated that she planned to represent herself. The court scheduled a hearing on the petitions and warned the parties that, if a party failed to appear, the court would dismiss that party’s petition and proceed without the party. The mother failed to appear at the hearing, and the court noted her default and proceeded on the father’s petition. The mother now appeals from an order that, inter alia, dismissed her petition and awarded the parties joint custody of the children. * * *

 The “request by a party to waive the right to counsel and proceed pro se . . . places in issue whether the court fulfilled its obligation to ensure a valid waiver” and may be reviewed by this Court on an appeal by the subsequently defaulting pro se party … .

“[A] court’s decision to permit a party who is entitled to counsel to proceed pro se must be supported by a showing on the record of a knowing, voluntary and intelligent waiver of [the right to counsel]” … . “If a timely and unequivocal request [to proceed pro se] has been asserted, then the trial court is obligated to conduct a ‘searching inquiry’ to ensure that the [party’s] waiver is knowing, intelligent, and voluntary” … . Although “[a] ‘searching inquiry’ does not have to be made in a formulaic manner” … , “the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel” … . Matter of Crespo v Wynn, 2026 NY Slip Op 02517, Fourth Dept 4-24-26

Practice Point: In a custody proceeding, before accepting a party’s request to represent herself, the court must conduct a searching inquiry to make sure the party understands the dangers and disadvantages. The issue is appealable despite a subsequent default.

 

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