CHILD CUSTODY IN DIVORCE - RIGHT TO COUNSEL

Brandel v Brandel, 2021 NY Slip Op 05116, Decided on September 29, 2021, Appellate Division, Second Department:

"The parties were married in 2008 and have one child together, born in 2012. The plaintiff commenced the instant divorce action in the Supreme Court in April 2015, seeking, inter alia, sole custody of the child. During a Family Court proceeding in May 2015, the parties agreed to a resolution in open court. In an order of custody and parental access dated July 13, 2015, issued on consent, the Family Court, among other things, awarded the defendant primary physical custody of the child. During the divorce trial, the defendant's attorney was permitted to withdraw, and the defendant proceeded pro se. At the conclusion of the trial, the Supreme Court issued a judgment of divorce, inter alia, awarding the plaintiff primary physical custody of the child, with certain parental access to the defendant. The defendant appeals.

A divorce litigant has a statutory right to counsel for the custody portion of the litigation (see Family Ct Act § 262[a][iii], [v]; Judiciary Law § 35[8]). Here, the defendant's [*2]attorney was permitted to withdraw during the trial, and the defendant proceeded pro se. However, the Supreme Court did not determine whether the defendant was unequivocally, voluntarily, and intelligently waiving his right to counsel (see Matter of Tarnai v Buchbinder, 132 AD3d 884, 886; Matter of Nixon v Christian, 130 AD3d 831, 832) and failed to inquire whether the defendant understood the risks and disadvantages of appearing pro se. Accordingly, we modify the judgment of divorce by deleting the provision thereof awarding the plaintiff primary physical custody of the child, without regard to the merits of the defendant's position, and remit the matter to the Supreme Court, Orange County, for a new trial on the issue of modification of custody (see Charbonneau v Charbonneau, 151 AD3d 1060, 1061; Matter of Pugh v Pugh, 125 AD3d 663, 664). At that time, the court should conduct a more detailed inquiry to determine whether the defendant is eligible for assigned counsel. Pending the new trial and determination, the provisions of the judgment of divorce regarding custody and parental access shall remain in effect."