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FATHER IN THIS CHILD SUPPORT MATTER WAS ESSENTIALLY FORCED TO PROCEED PRO SE BY THE SUPPORT MAGISTRATE IN VIOLATION OF FATHER’S RIGHT TO COUNSEL (SECOND DEPT).

The Second Department, reversing Family Court in this child-support matter, determined father was essentially forced to proceed pro se by the support magistrate, in violation of his right to counsel:

… [T]he Support Magistrate relieved the father’s assigned counsel upon the father’s request.

At the next proceeding … , the father appeared without counsel and indicated that he had not been assigned a new attorney. The Support Magistrate advised the father that a hearing on the mother’s violation petition was scheduled for that date and asked the father if he intended to “present a defense on [his] own, . . . not participat[e], or hir[e] an attorney.” After the father gave a nonresponsive answer, the Support Magistrate stated that “the Court will proceed on the [father’s] default.” The father again protested that he did not have an attorney. The Support Magistrate then found that the father “is choosing not to participate in the proceedings.” In an order of disposition … , the Support Magistrate found that the father willfully violated the prior order of child support. * * *

… [T]he record demonstrates that the father “did not wish to proceed pro se, but was forced to do so” … . At the proceeding on August 28, 2024, the father repeatedly protested that he did not have an attorney, and the Support Magistrate did not conduct an inquiry to determine whether the father was waiving his right to counsel or address the possibility of assigning new counsel to the father … . Moreover, although the Support Magistrate had previously cautioned the father against self-representation when the father’s former assigned counsel was relieved, the Support Magistrate at no point conducted a sufficiently searching inquiry to ensure that the father was knowingly, voluntarily, and intelligently waiving his right to counsel … . Matter of Baldwin v Peterkin, 2026 NY Slip Op 02647, Second Dept 4-29-26

Practice Point: Before allowing a party to proceed pro se, the judge or magistrate must conduct a searching inquiry to ensure the party is aware of the dangers. It is a constitutional violation to “force” a party to proceed without an attorney.

 

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