In the Matter of Elana Rosof v. Mallory

• Decision Date: 11 October 2011
• Citation: 930 N.Y.S.2d 901,88 A.D.3d 802,2011 N.Y. Slip Op. 07227
• Parties: In the Matter of Elana ROSOF, respondent,v.Richard MALLORY, appellant.
• Court: New York Supreme Court — Appellate Division

88 A.D.3d 802

930 N.Y.S.2d 901

2011 N.Y. Slip Op. 07227

In the Matter of Elana ROSOF, respondent,

v.Richard MALLORY, appellant.

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

Oct. 11, 2011.

OPINION TEXT STARTS HERERichard L. Herzfeld, P.C., New York, N.Y., for appellant.

Elana Rosof, Huntington, N.Y., respondent pro se.Diane B. Groom, Central Islip, N.Y., attorney for the child.

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Burke, Ct.Atty.Ref.), dated September 21, 2010, which, after a fact-finding hearing, inter alia, granted the mother's petition to modify a prior order of the same court dated April 26, 2007, so as to award him only supervised visitation.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a new hearing on the mother's petition and a new determination thereafter.

At the commencement of a hearing to determine whether the father should have only supervised visitation with his daughter, the father's attorney asked to be relieved, and the father consented to her discharge. The father asked that new counsel be appointed, but the Family Court declined to do so, and the father represented himself.

The father, as a respondent in a proceeding pursuant to Family Court Act article 6, had the right to be represented by counsel ( see Family Ct. Act § 262; Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 224, 506 N.Y.S.2d 198). To determine whether a party is validly waiving the right to counsel, the court must conduct a “searching inquiry” in order to be reasonably certain that the party understands the dangers and disadvantages of giving up the fundamental right to counsel ( Matter of Spencer v. Spencer, 77 A.D.3d 761, 762, 908 N.Y.S.2d 597 [internal quotation marks omitted]; see Matter of Casey N., 59 A.D.3d 625, 629, 873 N.Y.S.2d 343; Matter of Knight v. Knight, 59 A.D.3d 445, 446, 873 N.Y.S.2d 324). Here, the Family Court conducted no inquiry at all to determine whether the father was waiving the right to counsel. Requiring the father to try the matter without the benefit of counsel impermissibly placed the Family Court's interest in preventing delay above the interests of the parents and the child, and violated the father's right to be represented by counsel ( see Matter of Williams v. Bentley, 26 A.D.3d 441, 442, 809 N.Y.S.2d 205; Matter of Patricia L. v. Steven L., 119 A.D.2d at 225, 506 N.Y.S.2d 198). The deprivation of a party's fundamental ...