Bianco v. Bruce-Ross

• Decision Date: 07 June 2017
• Citation: 56 N.Y.S.3d 243,151 A.D.3d 716
• Parties: In the Matter of Marissa BIANCO, respondent, v. Duncan BRUCE–ROSS, appellant.
• Court: New York Supreme Court — Appellate Division

151 A.D.3d 716
56 N.Y.S.3d 243

In the Matter of Marissa BIANCO, respondent,
v.
Duncan BRUCE–ROSS, appellant.

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

June 7, 2017.

56 N.Y.S.3d 244

Salvatore C. Adamo, New York, NY, for appellant.

56 N.Y.S.3d 245

Castrovinci & Mady, Smithtown, NY (Matthew K. Mady of counsel), for respondent.

Jill D. Weinberg–Daly, Riverhead, NY, attorney for the child.

RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

Appeal by the father from an order of the Family Court, Suffolk County (Timothy P. Mazzei, J.), dated December 18, 2015. The order, insofar as appealed from, after a hearing, in effect, granted the mother's petition, in effect, for sole legal and physical custody of the subject child and denied the father's cross petition for sole custody of the child.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

A party in a custody dispute has the right to be represented by counsel (see Matter of Moiseeva v. Sichkin, 129 A.D.3d 974, 975, 13 N.Y.S.3d 123 ; Matter of Belmonte v. Batista, 102 A.D.3d 682, 682, 961 N.Y.S.2d 174 ), but may waive that right, provided that he or she does so knowingly, voluntarily, and intelligently (see Matter of Stephen Daniel A. [Sandra M.], 87 A.D.3d 735, 736, 930 N.Y.S.2d 14 ). "In order to determine whether a party is validly waiving the statutory right to counsel, the Family Court must conduct a ‘searching inquiry’ to ensure that the waiver is knowing, voluntary, and intelligent" (Matter of Osorio v. Osorio, 142 A.D.3d 1177, 1178, 38 N.Y.S.3d 241, quoting Matter of Jung [State Commn. on Jud. Conduct], 11 N.Y.3d 365, 373, 870 N.Y.S.2d 819, 899 N.E.2d 925 ; see Matter of Rosof v. Mallory, 88 A.D.3d 802, 802, 930 N.Y.S.2d 901 ; Matter of Spencer v. Spencer, 77 A.D.3d 761, 761, 908 N.Y.S.2d 597 ; Matter of McGregor v. Bacchus, 54 A.D.3d 678, 679, 863 N.Y.S.2d 260 ). "While there is no rigid formula to be followed in such an inquiry, and the approach is flexible, the record must demonstrate that the party was aware of the dangers and disadvantages of proceeding without counsel" (Matter of McGregor v. Bacchus, 54 A.D.3d at 679, 863 N.Y.S.2d 260 [internal quotation marks omitted]; see Matter of Pugh v. Pugh, 125 A.D.3d 663, 664, 2 N.Y.S.3d 608 ).

Here, the Family Court conducted a sufficiently searching inquiry to ensure that the father's clear and unequivocal waiver of his right to counsel was knowingly, voluntarily, and...