| Matter of Dolson v Mitts |
| 2012 NY Slip Op 07016 [99 AD3d 1079] |
| October 18, 2012 |
| Appellate Division, Third Department |
| In the Matter of Jeanne E. Dolson, Respondent, v Lindey M. Mitts,Appellant. |
—[*1] Christopher J. Obstarczyk, Albany, attorney for the child.
Mercure, J.P. Appeal from an order of the Family Court of Albany County (Duggan, J.),entered August 24, 2011, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Pursuant to a custody order that was incorporated into the parties' judgment of divorce, theparties share joint legal custody of their child (born in 1999), with petitioner (hereinafter themother) having primary physical custody. The mother commenced this proceeding formodification of the prior order of custody, seeking an order allowing her to obtain a passport forthe child after respondent (hereinafter the father) refused to sign an application or formconsenting to the issuance of a passport for the child. Family Court granted the petition withoutan evidentiary hearing, and issued an order awarding the mother sole legal custody for thepurpose of obtaining a passport for the child. The father appeals, and we now reverse.[FN*][*2]
As Family Court acknowledged during the parties'appearance before it, the father—a respondent in a custody proceeding—has theright to counsel, the right to seek an adjournment to confer with counsel, and the right to assignedcounsel if qualified financially (see Family Ct Act § 262 [a] [iii]; Matter ofWilson v Bennett, 282 AD2d 933, 934 [2001]). Although the court properly advised thefather of these rights, it refused to adjourn the proceeding when the father expressed hisconfusion and requested an attorney. "The deprivation of a party's fundamental right to counsel isa denial of due process and requires reversal, without regard to the merits of the unrepresentedparty's position" (Matter of Deon M.[Vernon B.], 68 AD3d 1740, 1741 [2009] [internal quotation marks and citationomitted]; see Wilson v Bennett, 282 AD2d at 934). Inasmuch as Family Court grantedthe petition without affording the father the assistance of counsel, we now reverse and remit (see Matter of Scala v Tefft, 42 AD3d689, 691-692 [2007]; Matter ofWilliams v Bentley, 26 AD3d 441, 442 [2006]).
Malone Jr., Garry and Egan Jr., JJ., concur. Ordered that the order is reversed, on the law,without costs, and matter remitted to the Family Court of Albany County for further proceedingsnot inconsistent with this Court's decision.
Footnote *: Asserting that the mother maytake the child out of the country without his knowledge, the father requests that the mother eitherreturn the passport to the federal government or relinquish it to a neutral third party; the motherseeks to retain the child's passport for future foreign travel. Thus, although the child was issued apassport and has since used it to take a family vacation with the mother, the rights of the partieswill be affected by our determination and this appeal is not moot (see Matter of Hearst Corp.v Clyne, 50 NY2d 707, 714 [1980]; see generally Matter of Awan v Awan, 75 AD3d 597, 598 [2010]).