Nonetheless, we recognize that certain Family Court proceedings, although civil in nature, implicate constitutional due process considerations because they involve issues relating to the custody and welfare of children, or can potentially result in incarceration. We also note that sections 261 and 262 of the Family Court Act recognize that parties in certain Family Court proceedings have a right to counsel, and provide a mechanism to ensure that those parties are fully advised of the right to counsel, including the right to assignment of counsel for those who are indigent (see Family Ct Act §§ 261, 262). Significantly, the statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings (see Matter of Erin G., 139 AD2d 737, 739; Matter of De Vivo v Burrell, 101 AD2d 607, 607). With respect to this proceeding, Family Court Act § 262(a)(vi) extends the right to counsel to "any person in any proceeding . . . in which an order or other determination is being sought to hold such person . . . in willful violation of a previous order of the court," because such persons potentially may be incarcerated.
The rejection of respondent's excuses and explanations was a credibility determination by the factfinder and, according deference to that determination ( see Matter of Kelly v Schoonbeck, 34 AD3d at 1095; Matter of Heyn v Burr, 19 AD3d 896, 898), we are unpersuaded to set aside Family Court's decision. The remaining arguments are unavailing. Respondent received meaningful representation from his assigned counsel ( see Matter of France v Buck, 299 AD2d 716, 717; Matter of Be Vivo v Burrell, 101 AD2d 607, 607-608). Family Court properly settled the record to include those documents and transcripts that were before it and considered by it when rendering the order from which this appeal was taken, and not to include documents related to other proceedings involving respondent ( see Matter of Dyno v Village of Johnson City, 255 AD2d 737, 737; Batch v Batch, 193 AD2d 1080, 1080; see also Smith v Monro Muffler Brake, 275 AD2d 1028, 1029, lv denied 96 NY2d 710).
Although respondent never served an answer or a cross-petition (and never formally requested an award of custody), as a result of this proceeding Family Court treated the matter as a custody proceeding and issued an order awarding her sole custody of the children. Under any interpretation of the proceeding, this should not have occurred in the absence of an advisement to petitioner — as the respondent in such a custody inquiry — of his right to counsel, including assigned counsel if indigent and the right to seek an adjournment to confer with counsel ( see Family Ct Act § 262 [a] [iii], [v]; see also Matter of Perez v Arebalo, 13 AD3d 85, 87-88; Matter of Alexander v Maharaj, 299 AD2d 354; Matter of Be Vivo v Burrell, 101 AD2d 607). Further, in the absence of any sworn testimony or documentary evidence of any kind, neither the denial of petitioner's visitation request nor the grant of custody to respondent can be upheld as having a sound and substantial basis ( see Matter of Tanya U., 243 AD2d 785, 786; see also Matter of Frierson v Goldston, 9 AD3d 612, 614; cf. Matter of Neail v Deshane, 19 AD3d 758, 758, lv denied 5 NY3d 711).
However, in view of respondent's admission that he had failed to make the required child support payments, we find that this error was harmless (see People v. Crimmins, 36 N.Y.2d 230, 239-242). As for respondent's claim of ineffective assistance due, in part, to assigned counsel's failure to object to admission of this evidence, upon our review of the record we find that respondent's counsel did not provide less than meaningful representation (see People v. Benevento, 91 N.Y.2d 708, 712-713; People v. Baldi, 54 N.Y.2d 137, 146-147; Matter of De Vivo v. Burrell, 101 A.D.2d 607, 608). Peters, Carpinello, Mugglin and Rose, JJ., concur.
The court directed respondent to conclude his testimony and present witnesses, despite repeated protests by respondent that he was unprepared to do so in the absence of counsel. The court's handling of the matter deprived respondent of his fundamental right to counsel, a right guaranteed in custody cases by statute and case law ( see, Family Ct Act § 261, 262 Fam. Ct. Act [a] [iii], [v]; Matter of Patricia L. v. Steven L., supra, at 224; Matter of De Vivo v. Burrell, 101 A.D.2d 607; Matter of Jackson v. Lee, 96 A.D.2d 760; Matter of Sabat v. Sabat, supra, at 585). The court should have inquired further before labeling respondent's counsel a liar and, in any event, should not have directed respondent to proceed immediately without counsel ( see, Matter of Patricia L. v. Steven L., supra, at 225-226).
Respondent further contends that the court should have granted his motion to vacate the custody order because he was denied effective assistance of counsel. We disagree. "Parties to a custody proceeding have a right to be represented by counsel (Family Ct Act § 261, 262 Fam. Ct. Act). `Such right would be meaningless unless the assistance of counsel is effective'" ( Matter of Dingman v. Purdy, 221 A.D.2d 817, 818, quoting Matter of De Vivo v. Burrell, 101 A.D.2d 607). Upon our review of the record, we conclude that respondent was provided with "meaningful and constitutionally competent legal representation" ( Matter of Dingman v. Purdy, supra, at 818). (Appeal from Order of Onondaga County Family Court, McCarthy, J. — Custody.)
Finally, we reject respondent's contention that she was deprived of the effective assistance of counsel. Not only was her counsel's representation reasonably competent and therefore meaningful (see, Matter of Williams v. MacDougall, 226 A.D.2d 782, 783), but there is no indication that the hearing was a "`farce [and a] mockery of justice'" (Matter of De Vivo v. Burrell, 101 A.D.2d 607, 608, quoting People v. Baldi, 54 N.Y.2d 137, 146). Mercure, J.P., Peters, Spain and Carpinello, JJ., concur.
Ordinarily, a party seeking to vacate a default must show that there is a reasonable excuse for the default and a meritorious defense ( see, Matter of Naajila J., 235 A.D.2d 540; Matter of Little Flower Children's Servs. [Sean Courtney G.] v. Vernon J., 213 A.D.2d 548; Matter of Shirley C., 145 A.D.2d 631; Matter of Jones, 128 A.D.2d 403). That showing was unnecessary here, however, because the record establishes that petitioner was denied effective assistance of assigned counsel. A respondent in a permanent neglect proceeding has the right to effective assistance of counsel ( see, Family Ct Act § 261, 262 Fam. Ct. Act [a] [iv]; see also, Matter of Karl L., 224 A.D.2d 841; Matter of De Vivo v. Burrell, 101 A.D.2d 607), and the denial of such right may be raised at any time ( see, People v. Jackson, 218 A.D.2d 556, 558, lv denied 87 N.Y.2d 847). Further, because the potential consequences are so drastic, the Family Court Act "affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings" ( Matter of Erin G., 139 A.D.2d 737, 739; see, Matter of Ashley M., 235 A.D.2d 858).
The right to counsel in a proceeding pursuant to Family Court Act article 10 is guaranteed by statute ( see, Family Ct Act § 262 [a] [i]). In assessing a claim based upon ineffective assistance of counsel, the focus is whether the individual received "meaningful" assistance ( see, People v English, 215 AD2d 871; Matter of Erin G, 139 AD2d 737, 739; Matter of De Vivo v Burrell, 101 AD2d 607). Because of the potentially drastic consequences of a child protective proceeding, the statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded defendants in criminal proceedings ( see, Matter of Erin G., supra, at 739; Matter of De Vivo v Burrell, supra). Applying these principles here we find that the appellants were afforded meaningful representation, thereby satisfying the constitutional standard ( see, Matter of Erin G., supra, at 739; People v Satterfield, 66 NY2d 796; People v Baldi, 54 NY2d 137).
We further find no merit to petitioner's claim that she was deprived of effective assistance of counsel. Viewed as a whole, the record shows that petitioner received "reasonably competent and thus meaningful representation" at trial ( Matter of Williams v MacDougall, 226 AD2d 782, 783; see, People v Baldi, 54 NY2d 137, 146-147; Matter of De Vivo v Burrell, 101 AD2d 607, 608). We have considered petitioner's remaining contentions and find that they lack merit.