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In the Matter of Jeanne E. v. Lindey M. Mitts

State of New York Supreme Court, Appellate Division Third Judicial Department


October 18, 2012

IN THE MATTER OF JEANNE E. DOLSON, RESPONDENT,
v.
LINDEY M. MITTS, APPELLANT.

Appeal from an order of the Family Court of Albany County (Duggan, J.), entered August 24, 2011, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

The opinion of the court was delivered by: Mercure, J.P.

MEMORANDUM AND ORDER

Calendar Date: September 14, 2012

Before: Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ.

Pursuant to a custody order that was incorporated into the parties' judgment of divorce, the parties share joint legal custody of their child (born in 1999), with petitioner (hereinafter the mother) having primary physical custody. The mother commenced this proceeding for modification of the prior order of custody, seeking an order allowing her to obtain a passport for the child after respondent (hereinafter the father) refused to sign an application or form consenting to the issuance of a passport for the child. Family Court granted the petition without an evidentiary hearing, and issued an order awarding the mother sole legal custody for the purpose of obtaining a passport for the child. The father appeals, and we now reverse.*fn1

As Family Court acknowledged during the parties' appearance before it, the father -- a respondent in a custody proceeding -- has the right to counsel, the right to seek an adjournment to confer with counsel, and the right to assigned counsel if qualified financially (see Family Ct Act § 262 [a] [iii]; Matter of Wilson v Bennett, 282 AD2d 933, 934 [2001]). Although the court properly advised the father of these rights, it refused to adjourn the proceeding when the father expressed his confusion and requested an attorney. "The deprivation of a party's fundamental right to counsel is a denial of due process and requires reversal, without regard to the merits of the unrepresented party's position" (Matter of Deon M. [Vernon B.],

68 AD3d 1740, 1741 [2009] [internal quotation marks and citation omitted]; see Wilson v Bennett, 282 AD2d at 934). Inasmuch as Family Court granted the petition without affording the father the assistance of counsel, we now reverse and remit (see Matter of Scala v Tefft, 42 AD3d 689, 691-692 [2007]; Matter of Williams v Bentley, 26 AD3d 441, 442 [2006]).

Malone Jr., Garry and Egan Jr., JJ., concur.

ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court's decision.

ENTER:

Robert D. Mayberger Clerk of the Court


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