| Matter of Rosof v Mallory |
| 2011 NY Slip Op 07227 [88 AD3d 802] |
| October 11, 2011 |
| Appellate Division, Second Department |
| In the Matter of Elana Rosof, Respondent, v RichardMallory, Appellant. |
—[*1] Elana Rosof, Huntington, N.Y., respondent pro se. Diane B. Groom, Central Islip, N.Y., attorney for the child.
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order ofthe Family Court, Suffolk County (Burke, Ct. Atty. Ref.), dated September 21, 2010, which, aftera fact-finding hearing, inter alia, granted the mother's petition to modify a prior order of the samecourt dated April 26, 2007, so as to award him only supervised visitation.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Suffolk County, for a new hearing on the mother's petition and anew determination thereafter.
At the commencement of a hearing to determine whether the father should have onlysupervised visitation with his daughter, the father's attorney asked to be relieved, and the fatherconsented to her discharge. The father asked that new counsel be appointed, but the Family Courtdeclined to do so, and the father represented himself.
The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had theright to be represented by counsel (see Family Ct Act § 262; Matter of PatriciaL. v Steven L., 119 AD2d 221, 224 [1986]). To determine whether a party is validly waivingthe right to counsel, the court must conduct a "searching inquiry" in order to be reasonablycertain that the party understands the dangers and disadvantages of giving up the fundamentalright to counsel (Matter of Spencer vSpencer, 77 AD3d 761, 761 [2010] [internal quotation marks omitted]; see Matter of Casey N., 59 AD3d625, 629 [2009]; Matter of Knight vKnight, 59 AD3d 445, 446 [2009]). Here, the Family Court conducted no inquiry at allto determine whether the father was waiving the right to counsel. Requiring the father to try thematter without the benefit of counsel impermissibly placed the Family Court's interest inpreventing delay above the interests of the parents and the child, and violated the father's right tobe represented by counsel (see Matter ofWilliams v Bentley, 26 AD3d 441, 442 [2006]; Matter of Patricia L. v StevenL., 119 AD2d at 225). The deprivation of a party's fundamental right to counsel in a custodyor visitation proceeding is a denial of due process which requires reversal, regardless of themerits of the unrepresented party's position (see Matter of Collier v Norman, 69 AD3d 936, 937 [2010]; Matter of Brown v Wood, 38 AD3d769, 770 [2007]; Matter of Williams v Bentley, 26 AD3d at 442).[*2]
Accordingly, the matter must be remitted to the FamilyCourt, Suffolk County, for a new hearing on the mother's petition and a new determinationthereafter. Angiolillo, J.P., Dickerson, Chambers and Lott, JJ., concur.