| Matter of Lewis v Fuller |
| 2010 NY Slip Op 00417 [69 AD3d 1142] |
| January 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tina M. Lewis, Appellant, v Zacharias W.Fuller, Respondent. |
—[*1] Sandra Colatosti, Albany, for respondent. Susan B. Marris, Law Guardian, Manlius.
Malone Jr., J. Appeal from an order of the Family Court of Otsego County (Ghaleb, J.),entered August 15, 2008, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Ten days after respondent (hereinafter the father) was released from prison, where he serveda sentence for criminal possession of a controlled substance, petitioner (hereinafter the mother)commenced this proceeding seeking to modify a prior order of custody, entered on consent of theparties in 2000, by terminating the father's visitation with the child (born in 1992) and awardingsole legal custody of the child to her. Following a Lincoln hearing and an evidentiaryhearing, Family Court determined that the mother had not established a change in circumstanceswarranting a modification and dismissed the petition. Family Court additionally set a specificvisitation schedule for the father. The mother appeals.
While we acknowledge the existence of extenuating circumstances in thiscase—including the hostility of the custodial mother—the fact is that, particularlyconsidering the child's mature age, "[b]y proceeding on the appeal without consulting andadvising [her] client, [the child's] appellate counsel failed to fulfill [her] essential obligation" (Matter of Mark T. v Joyanna U., 64AD3d 1092, 1095 [2009]). Therefore, given the circumstances herein and for the reasonsarticulated in Matter of Mark T. v Joyanna U. (64 AD3d at 1093-1095), the child'sappellate counsel will be relieved of her assignment, the decision of this Court will be withheldand a new appellate attorney will be assigned to represent the child to address—afterconsulting with and advising the child—any issue that the record may disclose.
Mercure, J.P., Spain, Kavanagh and McCarthy, JJ., concur. Ordered that the decision iswithheld, appellate counsel for the child is relieved of assignment and new counsel to beassigned to represent the child on this appeal.