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."

A FAMILY COURT DRAMA REVERSED ON APPEAL

Matter of Means v Miller, 2019 NY Slip Op 06088, Decided on August 7, 2019, Appellate Division, Second Department

"On March 4, 2010, the Family Court issued an order (hereinafter the custody order) awarding the father custody of the parties' child. On or about August 18, 2017, the mother filed a petition to modify the custody order so as to award her sole legal and residential custody of the child. At a court appearance, the mother indicated that she wished to represent herself. The court permitted the mother's assigned counsel to be relieved, with a general caution to the mother that she had a right to counsel and that, if she were to represent herself, she would be held to "the same standards as an attorney." Thereafter, the court summarily dismissed the petition "due to lack of jurisdiction," relying upon certain statements made by a caseworker of the New York City Administration for Children's Services and statements made by the attorney for the child that the child lived in New Jersey.

Pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act, codified at article 5-A of the Domestic Relations Law, a court of this state which has made an initial custody determination has exclusive, continuing jurisdiction over that determination until it finds that it should relinquish that jurisdiction because "neither the child" nor "the child and one parent" have a "significant connection" with New York, and "substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" (Domestic Relations Law § 76-a[1][a]; see Matter of Helmeyer v Setzer,173 AD3d 740; Matter of Montanez v Tompkinson, 167 AD3d 616; Matter of LaCour v Puglisi, 147 AD3d 842; Matter of Nelson v McGriff, 130 AD3d 736, 737; Miller v Shaw, 123 AD3d 1131, 1132).

Here, it is undisputed that the initial custody determination was rendered in New York. Nothing on the record before the Family Court established that it had been divested of exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a(1). Therefore, the court erred in summarily dismissing the mother's modification petition (see Matter of LaCour v Puglisi, 147 AD3d at 843; Matter of Nelson v McGriff, 130 AD3d at 737; Matter of Greenidge v [*2]Greenidge, 16 AD3d 583), and not affording the mother an opportunity to present evidence on that issue (see Matter of LaCour v Puglisi, 147 AD3d at 843; Miller v Shaw, 123 AD3d at 1132).

Moreover, the parent of any child seeking custody in any proceeding before the Family Court has the right to the assistance of counsel (see Family Ct Act § 262[a][v]). A party may waive that right and proceed without counsel provided he or she makes a knowing, voluntary, and intelligent waiver of the right to counsel (see Matter of Sauders v Scott, 172 AD3d 724; Matter of Pitkanen v Huscher, 167 AD3d 901, 902; Matter of Graham v Rawley, 140 AD3d 765, 767). In order to determine whether a party has validly waived the right to counsel, a court must conduct a "searching inquiry" to ensure that the waiver has been made knowingly, voluntarily, and intelligently (People v Arroyo, 98 NY2d 101, 103 [internal quotation marks omitted]). A waiver is valid where the party was aware of the dangers and disadvantages of proceeding without counsel (see Matter of Rosof v Mallory, 88 AD3d 802). Here, the Family Court did not conduct a sufficiently searching inquiry to ensure that the mother's waiver of her right to counsel was knowingly, voluntarily, and intelligently made (see Matter of Belmonte v Batista, 102 AD3d 682, 683).

Accordingly, we reverse the order and remit the matter to the Family Court, Kings County, for a determination on the issue of whether the court had exclusive, continuing jurisdiction pursuant to Domestic Relations Law § 76-a. If, upon remittal, the court determines, upon a complete examination of the evidence submitted, that it retains exclusive, continuing jurisdiction over the custody issues, it may exercise that jurisdiction, or it may decline to do so if it determines, upon consideration of the relevant statutory factors, that New York is an inconvenient forum (see Domestic Relations Law § 76-a[1]; Matter of La Cour v Puglisi, 147 AD3d at 843; Matter of Williams v Davis, 119 AD3d 950; Matter of Elbakri v Farag, 71 AD3d 767, 768; Matter of Greenidge v Greenidge, 16 AD3d at 583), or that another statutory basis for declining jurisdiction exists. Further, upon remittitur, the court must conduct an appropriate inquiry as to whether the mother wishes to proceed with or without counsel, and render a new determination thereafter."

NYC - RIGHT TO COUNSEL IN HOUSING COURT

Last summer, NYC signed into law an amendment to Title 26, Chapter 13 of the Administrative Code which provides, in pertinent part:

"§ 26-1302 Provision of legal services.

   a.   Subject to appropriation, the coordinator shall establish a program to provide access to legal services for covered individuals in covered proceedings in housing court and shall ensure that, no later than July 31, 2022:

      1.   all covered individuals receive access to brief legal assistance no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable; and

      2.   all income-eligible individuals receive access to full legal representation no later than their first scheduled appearance in a covered proceeding in housing court, or as soon thereafter as is practicable.

   b.   Subject to appropriation, no later than October 1, 2017, the coordinator shall establish a program to provide access to legal services in administrative proceedings of the New York city housing authority for tenants of buildings operated by the New York City housing authority who have been served with charges in such administrative proceedings for termination of tenancy and shall ensure that, no later than July 31, 2022, all such tenants receive access to such legal services.

   c.   The coordinator shall estimate annually the expenditures required for each year of implementation of the programs described by subdivisions a and b of this section. Beginning October 1, 2022 and no later than each October 1 thereafter, the coordinator shall publish a summary of any changes to such estimates for expenditures.

   d.   The coordinator shall annually review the performance of designated organizations.

   e.   The coordinator shall require each designated organization to identify the geographic areas for which such organization will provide legal services. For each such geographic area, the coordinator shall maintain a list of such organizations that provide such legal services.

   f.   Any legal services performed by a designated organization pursuant to this chapter shall not supplant, replace, or satisfy any obligations or responsibilities of such designated organization pursuant to any other program, agreement, or contract.

   g.   Nothing in this chapter or the administration or application thereof shall be construed to create a private right of action on the part of any person or entity against the city or any agency, official, or employee thereof.

(L.L. 2017/136, 8/11/2017)"

Basically, the new rule provides that at the end of 5 years, all income eligible tenants will be ensured an attorney when fighting their eviction in housing court.  Tenants who are over income, have the right to a consultation with an attorney.  It also provides for NYCHA tenants whose cases happen in administrative hearings, to have representation as well.