| Matter of Kristin R.H. v Robert E.H. |
| 2008 NY Slip Op 01237 [48 AD3d 1278] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Kristin R.H., Appellant, v Robert E.H.,Respondent. |
—[*1] Robert E.H., respondent-respondent pro se. David J. Chrispell, Law Guardian, Jamestown, for Ashlynne H. and Wyatt H.
Appeal from an order of the Family Court, Chautauqua County (Judith S. Claire, J.), enteredJuly 10, 2007 in a proceeding pursuant to Family Court Act article 6. The order, among otherthings, granted respondent custody of the parties' children, with visitation to petitioner.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Family Court, Chautauqua County, for a new hearingin accordance with the following memorandum: Petitioner mother appeals from an order grantingrespondent father custody of the parties' two children, with visitation to the mother. We agreewith the mother that she was denied the right to assistance of counsel at the custody hearinginasmuch as Family Court failed to obtain her valid waiver of the right to counsel before itallowed her to proceed pro se. The mother was assigned counsel at an earlier stage of theproceedings but, on the day of the custody hearing, her assigned counsel renewed his motion towithdraw, and the motion was granted upon the mother's consent. The court denied the mother'srequest for an adjournment and immediately commenced the hearing, with the mother proceedingpro se.
A parent has "the right to the assistance of counsel" in a custody proceeding (Family Ct Act§ 262 [a] [v]). Although that right may be waived and the parent may proceed pro se, therecord must indicate that the waiver was knowing, voluntary and intelligent (see Matter of Hassig v Hassig, 34AD3d 1089, 1090-1091 [2006]; seealso Matter of Jetter v Jetter, 43 AD3d 821 [2007]; Matter of Anthony K., 11 AD3d 748, 749 [2004]). Thus, the parentmust have "a sufficient awareness of the relevant circumstances and probable consequences ofthe waiver" (Matter of Evan F., 29AD3d 905, 907 [2006]), and the waiver "cannot rest upon cursory comments, but must besupported by a 'searching inquiry' " (Anthony K., 11 AD3d at 749, quoting People vArroyo, 98 NY2d 101, 103 [2002]). Here, the court relieved counsel after asking the motheronly whether she had any objection to counsel's motion to withdraw. We conclude that the court'ssingle question did not constitute the requisite searching inquiry to enable the court to ascertainwhether the mother understood the dangers and disadvantages of self-representation (seeJetter, 43 AD3d 821 [2007]; Hassig, 34 AD3d at 1091; cf. Anthony K., 11AD3d at 749-750). We therefore reverse the order [*2]and remitthe matter to Family Court for a new hearing before a different judge.
In light of our determination, we do not reach the mother's remaining contentions.Present—Scudder, P.J., Hurlbutt, Lunn, Green and Gorski, JJ.