Summary
finding an abuse of discretion in the trial court's order awarding the mother sole legal custody for the purpose of obtaining a passport for the minor child because, in issuing the award, the court "refused to adjourn the proceeding when the father . . . requested an attorney" and, therefore, deprived him of his fundamental right to counsel
Summary of this case from Barriga v. SimichOpinion
2012-10-18
In the Matter of Jeanne E. DOLSON, Respondent, v. Lindey M. MITTS, Appellant.
Paul J. Connolly, Delmar, for appellant. Christopher J. Obstarczyk, Albany, attorney for the child.
Paul J. Connolly, Delmar, for appellant. Christopher J. Obstarczyk, Albany, attorney for the child.
Before: MERCURE, J.P., MALONE JR., GARRY and EGAN JR., JJ.
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 to Family 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, the parties share joint legal custody of their child (born in 1999), with petitioner (hereinafter the mother) having primary physical custody. The mother commenced this proceeding for modification of the prior order of custody, seeking an order allowing her to obtain a passport for the child after respondent (hereinafter the father) refused to sign an application or form consenting to the issuance of a passport for the child. Family Court granted the petition without an evidentiary hearing, and issued an order awarding the mother sole legal custody for the purpose of obtaining a passport for the child. The father appeals, and we now reverse.
Asserting that the mother may take the child out of the country without his knowledge, the father requests that the mother either return the passport to the federal government or relinquish it to a neutral third party; the mother seeks to retain the child's passport for future foreign travel. Thus, although the child was issued a passport and has since used it to take a family vacation with the mother, the rights of the parties will be affected by our determination and this appeal is not moot ( see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980];see generally Matter of Awan v. Awan, 75 A.D.3d 597, 598, 906 N.Y.S.2d 70 [2010] ).
As Family Court acknowledged during the parties' appearance before it, the father—a respondent in a custody proceeding—has the right to counsel, the right to seek an adjournment to confer with counsel, and the right to assigned counsel if qualified financially ( seeFamily Ct. Act § 262[a] [iii]; Matter of Wilson v. Bennett, 282 A.D.2d 933, 934, 724 N.Y.S.2d 520 [2001] ). Although the court properly advised the father of these rights, it refused to adjourn the proceeding when the father expressed his confusion and requested an attorney. “The deprivation of a party's fundamental right to counsel is a denial of due process and requires reversal, without regard to the merits of the unrepresented party's position” (Matter of Deon M. [Vernon B.], 68 A.D.3d 1740, 1741, 891 N.Y.S.2d 817 [2009] [internal quotation marks and citation omitted]; see Wilson v. Bennett, 282 A.D.2d at 934, 724 N.Y.S.2d 520). Inasmuch as Family Court granted the petition without affording the father the assistance of counsel, we now reverse and remit ( see Matter of Scala v. Tefft, 42 A.D.3d 689, 691–692, 840 N.Y.S.2d 193 [2007];Matter of Williams v. Bentley, 26 A.D.3d 441, 442, 809 N.Y.S.2d 205 [2006] ).
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court's decision.
MALONE JR., GARRY and EGAN JR., JJ., concur.