| Matter of Adams v Bracci |
| 2009 NY Slip Op 02509 [61 AD3d 1065] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Ryan Adams, Respondent, v Alecia Bracci,Appellant. |
—[*1] Ryan Adams, New Windsor, respondent pro se. Tracy Donovan-Laughlin, Law Guardian, Cherry Valley.
Kane, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredJuly 11, 2008, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
In January 2007, Family Court entered a consent order granting the parties joint legalcustody of their daughter (born in 2004), with primary physical custody to respondent(hereinafter the mother) and visitation to petitioner (hereinafter the father). At the end of thatyear, the father filed the present application seeking primary physical custody due to the mother'srefusal to contact him or permit him to visit their child. Following a hearing, at which the motherwas not represented by counsel, the court awarded the father sole legal custody and primaryphysical placement, with visitation to the mother. The mother appeals.
Family Court appropriately required the mother to proceed pro se. The court informed theparties at their initial appearance of their rights to counsel, an adjournment to consult counsel,and possible assignment of counsel based upon their financial circumstances (see FamilyCt Act § 262 [a] [v]). At a conference approximately two months later, the court againinformed the parties of those rights, noted its awareness that the mother was attempting to findcounsel, and advised that everyone should be prepared to go forward on a specific date set asidefor trial. The last statement by the court on that date was, "If you're going to have attorneys,bring them."[*2]
On the hearing date a month later, the mother appearedwithout counsel. When she stated that she wanted counsel before proceeding, Family Courtpointed out its previous admonitions, including having provided forms for assignment ofcounsel. The mother told the court that she did not file those forms, she was trying to locatecounsel on her own and her lack of counsel was not due to financial reasons. In response toquestions from the court, the mother explained that she had not personally talked to anyattorneys, and could only give the first name of one person that her mother had called in searchof counsel (compare Matter of StephenL., 2 AD3d 1229, 1231 [2003]). The court then determined that the mother had waivedher right to counsel. Based upon all of the relevant circumstances, the court did not abuse itsdiscretion in refusing to grant the mother an adjournment, finding that she was fully advised ofher right to counsel and to have counsel present, yet she did nothing to avail herself of this right(see Matter of Pacheco v Stearns,23 AD3d 711, 712 [2005]; compareMatter of Hassig v Hassig, 34 AD3d 1089, 1091 [2006]). Indeed, the mother did notretain counsel in the two weeks between the first and second day of the hearing, proceeding prose throughout. Thus, we cannot say that she was deprived of her right to counsel.
On the merits, Family Court did not err in granting the father primary physical custody, buterred in awarding him sole legal custody. The mother concedes that the father demonstrated achange in circumstances. Accepting the court's credibility determinations (see Matter of Goldsmith v Goldsmith,50 AD3d 1190, 1191 [2008]), the proof established that the mother refused to answer orreturn the father's phone calls to arrange visitation or to talk to the child, thereby severelylimiting his contact with the child. When the child was in the mother's custody, the child spentextended periods of time in daycare or with her maternal grandmother. The child suffered frombottle rot, requiring extensive dental care at a young age, and engaged in sexualized behaviorattributed to the mother. Considering the frustration of visitation, along with the parties' livingsituations, the court did not err in holding that a transfer of physical custody to the father was inthe child's best interest (cf. Matter ofAnson v Anson, 20 AD3d 603, 604 [2005], lv denied 5 NY3d 711 [2005]).
Because the father did not at any time request modification of the joint legal custodyarrangement, and the mother thus had no notice that legal custody was at issue, Family Courtshould not have awarded the father sole legal custody (see Matter of Williams v Taylor,234 AD2d 809, 810 [1996]; see alsoMatter of Penninipede v Penninipede, 6 AD3d 445, 446 [2004]). Thus, we reverse thatportion of the order granting petitioner sole legal custody and reinstate joint legal custody.
Cardona, P.J., Rose, Kavanagh and Stein, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted petitioner sole legal custody;reinstate joint legal custody; and, as so modified, affirmed.