| Matter of Feliciano v King |
| 2013 NY Slip Op 05453 [108 AD3d 703] |
| July 24, 2013 |
| Appellate Division, Second Department |
| In the Matter of Dolores Feliciano,Appellant, v Andrew J. King III, Respondent. |
—[*1] Patrick Kevin Brosnahan, Jr., Babylon, N.Y., for respondent. Beth A. Rosenthal, North Babylon, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the motherappeals from an order of the Family Court, Suffolk County (James, Ct. Atty. Ref.), datedApril 30, 2012, which, after a hearing, denied her petition to modify a prior order of thesame court dated September 13, 2010, entered upon the stipulation of the parties, so as toaward her sole legal and physical custody of the parties' child and to require thatvisitation with the father be supervised, and dismissed the proceeding with prejudice.
Ordered that the order dated April 30, 2012, is reversed, on the facts and in theexercise of discretion, without costs or disbursements, the petition is reinstated, and thematter is remitted to the Family Court, Suffolk County, for a new hearing before adifferent court attorney referee and a new determination of the petition thereafter.
The mother filed a petition to modify a prior order of the Family Court datedSeptember 13, 2010, so as to award her sole legal and physical custody of the parties'child and to require that visitation with the father be supervised. After the third day of ahearing on the petition, during cross-examination of the mother, the mother requestedthat she be allowed to substitute her court-appointed counsel with counsel that sheprivately retained. The privately retained counsel sought a one-week adjournment of thehearing to obtain the transcript of the prior testimony and to prepare for the continuationof the hearing. The Family Court denied the request for an adjournment and advised themother that she could choose to continue with one or both counsel, who were present inthe courtroom, or proceed without counsel that afternoon, or have the court make adecision based on the incomplete record. The mother chose the latter option. Based uponthe evidence adduced by the mother until the point of the adjournment request, theFamily Court denied the mother's petition and dismissed the proceeding with prejudice.
The granting of an adjournment for any purpose is a matter resting within the sounddiscretion of the Family Court, upon a balanced consideration of all relevant factors (see Matter of Kinara C. [JeromeC.], 89 AD3d 839, 841 [2011]; Matter of Ciccone v Ciccone, 73 AD3d 1052, 1052 [2010];[*2]Matter of Venditto v Davis, 39 AD3d 555 [2007]).The range of the court's discretion is narrowed where a fundamental right such as theright to counsel in a matter involving custody of a child is involved (see Matter of Savoca vBellofatto, 104 AD3d 695, 697 [2013]; Matter of Evan F., 29 AD3d 905, 907 [2006]; Matter of Sullivan v Sullivan,24 AD3d 455, 456 [2005]; Matter of Vidal v Mintzer, 309 AD2d 756, 758[2003]). Here, the Family Court improvidently exercised its discretion in denying themother's request for a one-week adjournment. Under the circumstances of this case, theFamily Court should have exercised its discretion to grant the one-week adjournmentrequest rather than requiring the mother to choose between proceeding with the hearingthat afternoon with the court-appointed attorney, whom the mother expressed she nolonger wanted to represent her and who made an application to be relieved as counsel, orthe privately retained attorney or both of them, or submitting the matter for a decisioneven though the record was incomplete (see Matter of Savoca v Bellofatto, 104AD3d at 697; Matter of Evan F., 29 AD3d at 907). Accordingly, we reverse theorder appealed from, reinstate the petition, and remit the matter to the Family Court,Suffolk County, for a new hearing before a different court attorney referee and a newdetermination of the petition thereafter. Dillon, J.P., Dickerson, Austin and Miller, JJ.,concur.