Follini v. Currie

189 A.D.3d 1586

135 N.Y.S.3d 282 (Mem)

In the Matter of James FOLLINI, Jr., respondent,

v.Galonda CURRIE, appellant.

2019–09085

Docket Nos. V–6187–16/18C, V–6188–16/18C

Supreme Court, Appellate Division, Second Department, New York.

Submitted—December 15, 2020

December 30, 2020

Joseph J. Artrip, Cornwall, NY, for appellant.

Peter C. Lomtevas, Brooklyn, NY, for respondent.

Christine Foy Stage, Warwick, NY, attorney for the child Jionni F.

LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Lori Currier Woods, J.), dated June 26, 2019. The order, insofar as appealed from, after a hearing, granted the father's petition to modify an order of the same court dated June 4, 2018, so as to grant him sole legal and physical custody of the parties' two children.

ORDERED that the order dated June 26, 2019, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for a new hearing with all deliberate speed and a new determination of the petition thereafter; and it is further,

ORDERED that pending the new hearing and new determination of the petition, the children shall remain in the custody of the father.

" Family Court Act § 262 provides certain parties to particular Family Court proceedings with a statutory right to counsel. If the party in question falls within one of the enumerated subdivisions thereto, he or she must be advised by the court, before proceeding, that he or she has the right to representation, the right to seek an adjournment to confer with counsel and the right to assigned counsel if he or she cannot afford to retain counsel" ( Matter of Wilson v. Bennett, 282 A.D.2d 933, 934, 724 N.Y.S.2d 520 ). The deprivation of a party's fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party's position (see Matter of Collier v. Norman, 69 A.D.3d 936, 892 N.Y.S.2d 793 ; Matter of Shepherd v. Moore–Shepherd, 54 A.D.3d 347, 863 N.Y.S.2d 57 ; Matter of Brown v. Wood, 38 A.D.3d 769, 834 N.Y.S.2d 196 ; Matter of Hall v. Ladson, 28 A.D.3d 768, 814 N.Y.S.2d 232 ; Matter of Knight v. Griffith, 13 A.D.3d 449, 787 N.Y.S.2d 53 ; Matter of Wilson v. Bennett, 282 A.D.2d 933, 724 N.Y.S.2d 520 ; Matter of Dominique L.B., 231 A.D.2d 948, 647 N.Y.S.2d 639 ; Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 506 N.Y.S.2d 198 ; Matter of Orneika J., 112 A.D.2d 78, 80, 491 N.Y.S.2d 639 ).

Here, the mother clearly fell within one of the enumerated subdivisions of Family Court Act § 262 because she was the respondent in a custody modification proceeding. Therefore, the Family Court should have advised the mother of her right to cou...