Calendar Date: January 12, 2018
J. Connolly, Delmar, for appellant.
Colapietro, Binghamton, for respondents.
J. Pelella, Owego, attorney for the child.
Before: Garry, P.J., McCarthy, Egan Jr., Lynch and Pritzker,
MEMORANDUM AND ORDER
from an order of the Family Court of Broome County
(Connerton, J.), entered February 22, 2017, which, in a
proceeding pursuant to Family Ct Act article 6, denied
respondent's motion to vacate a prior order of custody
facts and procedural history of this matter are more fully
set forth in our previous decision in this case (129 A.D.3d
1344 ). As relevant here, respondent (hereinafter the
father) is the parent of the subject child (born in 2007).
When this matter was previously before us, we dismissed the
father's appeal from Family Court's 2014 order
awarding custody of the child to the child's maternal
grandparents on the ground that no appeal lies from an order
entered upon a party's consent (id. at 1345). We
also found that the portion of the father's appeal
contesting the denial of his informal request for visitation
was moot based upon the father's conviction for one count
of murder in the first degree and two counts of murder in the
second degree for killing the child's mother and another
individual, and the fact that an award of visitation was
statutorily prohibited at that time (id. at 1346;
see Domestic Relations Law § 240 [1-c]; Family
Ct Act § 1085 ). We also noted that, to the extent
that the father contended that his consent to Family
Court's award of custody to the grandparents was coerced
or otherwise invalid, the appropriate remedy was for him to
move to vacate the underlying order (id. at 1345).
in November 2016, the father moved pro se to vacate the 2014
custody and visitation order awarding the grandparents
custody of the child on the ground that, among other things,
his consent thereto was coerced and/or the product of duress
and that he was otherwise denied certain due process rights,
thereby denying him the effective assistance counsel. Family
Court denied the father's motion, without a hearing,
determining, among other things, that there was no evidence
in the record to support the father's claim that his
consent to the custody order was the product of coercion
and/or duress and further denied his request for visitation
as moot. The father appeals.
without merit the father's contention that his consent to
Family Court's order awarding the grandparents custody of
the child was invalid inasmuch as it was the product of
coercion and/or duress. A review of the record establishes
that the father was represented by counsel in the underlying
proceeding, was present in court and, upon Family Court's
inquiry with regard to whether the father consented to the
grandparents' application for custody of the child, the
father consulted with his counsel, who thereafter
affirmatively represented to the court that the father so
consented. The father raised no objection to his
counsel's representation in this regard and no other
objections to the proposed custody arrangement were made at
that time. Accordingly, we find that the father's consent
to the custody order was knowingly and voluntarily obtained
(see Matter of Connor S. [Joseph S.], 122 A.D.3d
1096, 1097 ; Matter of Gabriella R. [Mindyn
S.], 68 A.D.3d 1487, 1488 , lv dismissed
14 N.Y.3d 812');">14 N.Y.3d 812 ). Nor do we find any support in the
record for the father's claim that he was denied the
effective assistance of counsel (see Matter of Tracey L.
v Corey M., 151 A.D.3d 1209, 1212 ; Matter of
Robinson v Bick, 123 A.D.3d 1242, 1242-1243 ).
to the issue of visitation, we note that the father's
murder convictions - which previously served as a statutory
prohibition to an award of visitation (129 A.D.3d at
1345-1346; see Domestic Relations Law § 240
[1-c]; Family Ct Act § 1085 , ) - have since been
overturned by this Court and a new trial ordered (People
v Powell, 153 A.D.3d 1034, 1034 ). The legal
landscape in this matter, therefore, has once again changed.
Notwithstanding, there is no dispute that the father was
convicted of first and second degree murder at the time that
Family Court denied his motion to vacate the underlying
custody and visitation order and, inasmuch as there is
nothing in the record indicating that the father thereafter
moved to reargue Family Court's denial of his motion to
vacate on the ground that his murder convictions were
subsequently overturned, there is presently no visitation
petition before us upon which to grant the relief requested.
The appropriate remedy under these circumstances is for the
father, if he so wishes, to file a new petition seeking
visitation with the child, upon which Family Court can then
determine whether any such visitation would be in the best
interests of the child (cf. Matter of Randy K. v Evelyn
ZZ., 263 A.D.2d 624, 625 ). As there is nothing in
the record suggesting that the father has commenced a new
visitation proceeding, he is not presently entitled to a
hearing on that issue. To the extent not expressly addressed,
the father's remaining contentions have been reviewed and
found to be without merit.
P.J., McCarthy, Lynch and ...