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In re Bianco

Supreme Court of New York, Second Department

June 7, 2017

In the Matter of Marissa Bianco, respondent,
v.
Duncan Bruce-Ross, appellant. Docket Nos. V-06231-15, V-06231-15/15A

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

          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, COLLEEN D. DUFFY, JJ.

          DECISION & ORDER

         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; Matter of Belmonte v Batista, 102 A.D.3d 682, 682), 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). "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, quoting Matter of Jung [State Commn. on Jud. Conduct], 11 N.Y.3d 365, 373; see Matter of Rosof v Mallory, 88 A.D.3d 802, 802; Matter of Spencer v Spencer, 77 A.D.3d 761, 761; Matter of McGregor v Bacchus, 54 A.D.3d 678, 679). "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 [internal quotation marks omitted]; see Matter of Pugh v Pugh, 125 A.D.3d 663, 664).

         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 Matter of Graham v Rawley, 140 A.D.3d 765, 767). 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 Ryan v Alexander, 133 A.D.3d 605, 606). Accordingly, the court did not err in allowing the father to represent himself.

         Likewise, there is no merit to the father's contention that the Family Court improvidently exercised its discretion in denying his motion for recusal. Where, as here, no legal basis for disqualification under Judiciary Law § 14 is alleged, a court is the sole arbiter of the need for recusal, and its decision is a matter of discretion and personal conscience (see Matter of Rodriguez v Liegey, 132 A.D.3d 880, 880; Matter of Grucci v Villanti, 108 A.D.3d 626, 627). The father failed to set forth any demonstrable proof of the court's bias or prejudice to warrant recusal (see Matter of O'Donnell v Goldenberg, 68 A.D.3d 1000, 1000; Impastato v Impastato, 62 A.D.3d 752, 753).

         Moreover, there is no basis to disturb the Family Court's order awarding sole legal and physical custody 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 (see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of Klein v Theus, 143 A.D.3d 984, 985; Matter of Gooler v Gooler, 107 A.D.3d 712, 712; Matter of Julie v Wills, 73 A.D.3d 777, 777). Inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses' credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Supangkat v Torres, 101 A.D.3d 889, 890; Matter of Reyes v Polanco, 83 A.D.3d 849, 850). Here, the court's determination that the child's best interests would be served by awarding sole legal and physical custody to the mother has a sound and substantial basis in the record and will not be disturbed (see Matter of Murphy v Lewis, 149 A.D.3d 748; Matter of Goodman v Jones, 146 A.D.3d 884, 886; Matter of McPherson v McPherson, 139 A.D.3d 953, 953).

         The father's remaining contention is without merit.

          BALKIN, J.P., CHAMBERS, MALTESE ...


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