| Matter of Collier v Norman |
| 2010 NY Slip Op 00678 [69 AD3d 936] |
| January 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Robin Collier, Appellant, v DoloresNorman, Respondent. |
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In related custody and visitation proceedings pursuant to Family Court Act article 6, and afamily offense proceeding pursuant to Family Court Act article 8, the mother appeals from (1) anorder of the Family Court, Kings County (Krauss, J.), dated April 9, 2009, which, without ahearing, denied her petition to modify a prior order of custody, (2) an order of the same courtalso dated April 9, 2009, which, without a hearing, denied her petition for visitation, and (3) anorder of the same court also dated April 9, 2009, which, without a hearing, denied her petitionfor an order of protection.
Ordered that the orders are reversed, on the law, without costs or disbursements, and thematter is remitted to the Family Court, Kings County, for further proceedings in accordanceherewith.
Family Court Act § 262 (a) (v) confers the right to the assistance of counsel upon "theparent of any child seeking custody or contesting the substantial infringement of his or her rightto custody of such child, in any proceeding before the court in which the court has jurisdiction todetermine such custody." Similarly, Family Court Act § 262 (a) (ii) confers the right to theassistance of counsel upon parties in proceedings brought pursuant to Family Court Act article 8.The statute further provides that "[w]hen such person first appears in court, the judge shalladvise such person before proceeding that he or she has the right to be represented by counsel ofhis or her own choosing, of the right to have an adjournment to confer with counsel, and of theright to have counsel assigned by the court in any case where he or she is financially unable toobtain the same" (Family Ct Act § 262 [a]). The deprivation of a party's right to counselguaranteed by this statute "requires reversal, without regard to the merits of the unrepresentedparty's position" (Matter of Brown v Wood, 38 AD3d 769, 770 [2007]; see Matter ofShepherd v Moore-Shepherd, 54 AD3d 347 [2008]; Matter of Hall v Ladson, 28AD3d 768 [2006]; see also Matter of Knight v Knight, 59 AD3d 445 [2009]; Matterof McGregor v Bacchus, 54 AD3d 678 [2008]; Matter of Guzzo v Guzzo, 50 AD3d687 [2008]; Matter of Jetter v Jetter, 43 AD3d 821 [2007]; Matter of Ford vTindal, 24 AD3d 664 [2005]).
Here, the petitioner was entitled to be represented by counsel, as she was a parent seekingcustody of her child and, during the pendency of the custody proceeding, visitation with the child(see Family Ct Act § 262 [a] [v]), and a petitioner in a proceeding pursuant toFamily Court Act article 8 (see Family Ct Act § 262 [a] [ii]). The Family Courtthus erred in failing to properly advise her of her right to [*2]counsel. Accordingly, the matter must be remitted to the FamilyCourt, Kings County, to advise the petitioner of her right to counsel pursuant to Family CourtAct § 262 and, if appropriate, to assign counsel, and thereafter for further proceedings onher petitions. Prudenti, P.J., Mastro, Florio and Austin, JJ., concur.