Ryan v. Alexander

• Decision Date: 04 November 2015
• Docket Number: V-26096-08/09A, V-05066-09/10C, V-05066-09, Docket Nos. V-26096-08, V-05066-09/09B, V-05066-09/09A,2013-09092 , V-26096-08/09C
• Citation: 18 N.Y.S.3d 717,133 A.D.3d 605,2015 N.Y. Slip Op. 07979
• Parties: In the Matter of Lesley Ann RYAN, respondent, v. Stephen ALEXANDER, appellant.
• Court: New York Supreme Court — Appellate Division

133 A.D.3d 605

18 N.Y.S.3d 717

2015 N.Y. Slip Op. 07979

In the Matter of Lesley Ann RYAN, respondent

v.Stephen ALEXANDER, appellant.

2013-09092

Docket Nos. V-26096-08

V-26096-08/09A

V-26096-08/09C

V-05066-09

V-05066-09/09A

V-05066-09/09B

V-05066-09/10C

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

Nov. 4, 2015.

Elliot Green, Brooklyn, N.Y., for appellant.

Carol L. Kahn, New York, N.Y., for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Anna Kou and Janet Neustaetter of counsel), attorney for the child.

JOHN M. LEVENTHAL, J.P., JEFFREY A. COHEN, COLLEEN D. DUFFY and HECTOR D. LaSALLE, JJ.

Opinion

Appeal from an order of the Family Court, Kings County (Alan Beckoff, J.), dated August 14, 2013. The order, insofar as appealed from, after a hearing, in effect, granted the mother's petition for sole custody of the subject child and denied the father's 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 proceeding 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 unequivocal, voluntary, and intelligent” (Matter of Cerquin v. Visintin, 118 A.D.3d 987, 988, 989 N.Y.S.2d 57, 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 ). “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 678, 679, 863 N.Y.S.2d 260 [internal quotation marks and citations omitted]; see Matter of Pugh v. Pugh, 125 A.D.3d 663, 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 intelligently made (see People v. Providence, 2 N.Y.3d 579, 583–584, 780 N.Y.S.2d 552, 813 N.E.2d 632 ; Matter of Massey v. Van Wyen, 108 A.D.3d 549, 550, 969 N.Y.S.2d 464 ; People v. Sexton, 73 A.D.3d 953, 954, 899 N.Y.S.2d 873 ). The court advised the father of the dangers and disadvantages of giving up the fundamental right to counsel, and the father acknowledged his understanding of those perils and repeated his desire to proceed pro se (see Matter of Massey v. Van Wyen, 108 A.D.3d at 550, 969 N.Y.S.2d 464 ; People v. Allison, 69 A.D.3d 740, 741, 892 N.Y.S.2d 516 ). Contrary to the father's contention, “mere ignorance of the law cannot vitiate an effective waiver of counsel” ( People v. McIntyre, 36 N.Y.2d 10, 17–18, 364 N.Y.S.2d 837, 324 N.E.2d 322 ).

In addition, there is no merit to the father's contention that the Family Court erred in directing his assigned counsel to remain in the case as his legal advisor. The role of advisory counsel is only “to aid the [party proceeding pro se] if and when [that party] requests help, and to be available to represent [that party] in the event that termination of [the party's] self-representation is necessary” (People v. Sawyer, 57 N.Y.2d 12, 22, 453 N.Y.S.2d 418, 438 N.E.2d 1133 [internal quotation marks omitted] ). Here, there is no indication in the record that the father objected to his assigned counsel acting as his legal advisor for the remainder of the hearing (see Matter of DeMichiel v. DeMichiel, 66 A.D.3d 894, 895, 886 N.Y.S.2d 643 ), nor was he entitled to assigned counsel of his choice (see Matter of Child Welfare Admin. v. Jennifer A., 218 A.D.2d 694, 696, 630 N.Y.S.2d 379 ).

Moreover, there is no basis to disturb the Family Court's order awarding sole custody of the child to the mother. “The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child” (Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). “Custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, and such assessments by the Family Court should not be disturbed unless they lack a sound and substantial...