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RESPONDENT MATERNAL UNCLE IN THIS CUSTODY PROCEEDING DID NOT EFFECTIVELY WAIVE HIS RIGHT TO COUNSEL; ORDER REVERSED (SECOND DEPT).

The Second Department, reversing Family Court in this custody action, determined respondent uncle did not waive his right to counsel:

Here, the maternal uncle had a statutory right to the assistance of counsel because he was a respondent in a child custody proceeding … . Although the record demonstrates that, at an appearance on the petition, the Family Court advised the maternal uncle of his right to retain counsel and his right to request an adjournment, it incorrectly informed him that “non parents in custody cases . . . are not entitled to assigned counsel.” The record also shows that while the maternal uncle indicated his desire to retain counsel and to adjourn the matter, he did not speak when the court and the father’s counsel discussed awarding the father temporary custody of the subject child with no visitation for the maternal uncle, and he exhibited confusion with respect to the purpose of the proceeding … . Under all of these circumstances, it cannot be said that the maternal uncle had a “sufficient awareness of the relevant circumstances and probable consequences” of proceeding without counsel … .

Furthermore, on the adjourned date, the Family Court erred in determining the merits of the father’s petition without first conducting a hearing … . Matter of Huasco v Chimborazo, 2024 NY Slip Op 00767, Second Dept 2-14-24

Practice Point: A respondent in a custody proceeding has a right to counsel. Here respondent did not explicitly waive his right to counsel and the order was reversed.

 

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