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INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL; PRESERVATION OF THIS ISSUE NOT NECESSARY.

The Fourth Department reversed Family Court's finding respondent had willfully violated a court order because of an insufficient waiver of the right to counsel. The court noted that a prior decision requiring preservation of the right-to-counsel issue should no longer be followed:

Although the Support Magistrate properly advised respondent that he had the right to counsel (see Family Ct Act § 262 [a] [vi]), we agree with respondent that the Support Magistrate failed to make a ” searching inquiry' ” to ensure that his waiver of the right to counsel was a knowing, voluntary and intelligent choice, and thus that he was denied his right to counsel … . We therefore reverse the order and remit the matter to Family Court for a new hearing. To the extent that our decision in Matter of Huard v Lugo (81 AD3d 1265… requires preservation of a contention that the Support Magistrate erred in allowing the respondent to proceed pro se at a fact-finding hearing, that decision is no longer to be followed. Matter of Girard v Neville, 2016 NY Slip Op 01947, 4th Dept 3-18-16

FAMILY LAW (INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/RIGHT TO COUNSEL (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)/APPEALS (FAMILY LAW, INADEQUATE WAIVER OF RIGHT TO COUNSEL REQUIRED REVERSAL, PRESERVATION OF THIS ISSUE NOT NECESSARY)

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