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In re Aleman

Supreme Court of New York, Second Department

February 28, 2018

In the Matter of Fannie Aleman, respondent,
v.
James A. Lansch, appellant. Docket Nos. V-3081-16, V-3082-16

          Submitted - January 23, 2018

         D54655 O/hu

          James A. Lansch, White Plains, NY, appellant pro se.

          Theresa M. Daniele, White Plains, NY, attorney for the children.

          MARK C. DILLON, J.P. LEONARD B. AUSTIN ROBERT J. MILLER SYLVIA O. HINDS-RADIX, JJ.

          DECISION & ORDER

         Appeal from an order of the Family Court, Westchester County (Nilda Morales-Horowitz, J.), entered October 21, 2016. The order, in effect, dismissed the father's petition for custody of the parties' children and his petition alleging violation of the parties' custody agreement that was incorporated into their judgment of divorce dated July 8, 2014, and granted the mother's family offense petition to the extent of limiting the father to supervised visitation with the parties' children.

         ORDERED that the order is reversed, on the law, without costs or disbursements, the father's petitions are reinstated, and the matters are remitted to the Family Court, Westchester County, for a hearing, with all convenient speed, on the father's petitions and the mother's family offense petition before a different judge, at which hearing the father shall be permitted to proceed pro se, if he so chooses, and for a new determination thereafter on the merits of the petitions; and it is further, ORDERED that pending the hearing and determination of the petitions, or further order of the Family Court, Westchester County, the father shall have unsupervised visitation with the children pursuant to the parenting agreement, but shall have no overnight visitation with the children.

         The parties were divorced by judgment dated July 8, 2014. The judgment of divorce incorporated the parties' custody agreement providing for j oint legal custody of the parties' children, with the mother to have primary physical custody and the father to have certain liberal parenting time. In January 2016, the mother filed a family offense petition against the father, alleging that he sexually abused the children. The Family Court issued a full stay-away temporary order of protection in favor of the mother and children, which was eventually replaced by a temporary order limiting the father to supervised visitation with the children. Thereafter, the father filed petitions seeking custody of the children and alleging that the mother violated the parties' custody agreement that was incorporated into the judgment of divorce by filing numerous false claims of sexual abuse against him.

         The father, who is a tax attorney, appeared pro se. In several court appearances, the Family Court repeatedly conducted an inquiry into the father's request to proceed pro se, advising him that he should retain counsel and noting the perils of proceeding without counsel. The father acknowledged his understanding of those perils and repeated his desire to proceed pro se. The court ultimately decided that he could not represent himself, and it would continue supervised visitation indefinitely until he retained counsel to file for modification of the temporary order. In the order appealed from, the court, in effect, dismissed the father's petition for custody and his petition alleging violation of the parties' custody agreement, and granted the mother's family offense petition to the extent of limiting the father to supervised visitation with the parties' children.

         The father had a statutory right to counsel in these Family Court proceedings (see Family Ct Act § 262[a][ii], [v]; Matter of Dixon v Marshall, 151 A.D.3d 965, 966; Matter of Graham v Rawley, 140 A.D.3d 765, 767). However, he also had the right to waive counsel and proceed pro se, provided he waived his right to counsel knowingly, intelligently, and voluntarily (see Faretta v California, 422 U.S. 806, 835; Matter of Kathleen K. [Steven K], 17 N.Y.3d 380, 384-385; Matter of Massey v Van Wyen, 108 A.D.3d 549, 550). "Where a respondent has made a knowing, intelligent, and voluntary choice to represent himself or herself, 'forcing a lawyer upon [him or her] is contrary to his [or her] basic right to defend himself [or herself]"' (Matter of Massey v Van Wyen, 108 A.D.3d at 550, quoting Faretta v California, 422 U.S. at 817).

         Where a party unequivocally and timely asserts the right to self-representation, the court must conduct a searching inquiry to ensure that the waiver of the right to counsel is knowing, intelligent, and voluntary (see Matter of Kathleen K. [Steven K.], 17 N.Y.3d at 385; Matter of State of New York v Raul L., 120 A.D.3d 52, 63). "While there is no rigid formula to the court's inquiry, there must be a showing that the party was aware of the dangers and disadvantages of proceeding without counsel'' (Matter of Graham v Rawley, 140 A.D.3d at 767 [internal quotation marks omitted]; see People v Providence, 2 N.Y.3d 579, 582; Matter of Dixon v Marshall, 151 A.D.3d at 966). The Court of Appeals has stated that the better practice is to ask the party about his or her age, education, occupation, previous exposure to legal procedures, and other relevant factors bearing on a competent, intelligent, and voluntary waiver (see People v Arroyo, 98 N.Y.2d 101, 104; Matter of State of New York v Raul L, 120 A.D.3d at 62).

         Here, the father unequivocally and timely asserted his right to represent himself in the Family Court proceedings. The Family Court engaged in a searching inquiry of the father, which revealed that he knowingly, intelligently, and voluntarily waived his right to counsel, and that it was his desire and personal choice to proceed pro se. The court properly warned him of the perils of self-representation, which he acknowledged. The father is a tax attorney, and his relative ignorance of family law did not justify the court's denial of his request, as mere ignorance of the law is insufficient to deprive one of the right to self-representation (see Matter of Massey v Van Wyen, 108 A.D.3d at 551). Further, the court's belief that counsel for the father would be helpful in these matters was an insufficient reason to deprive the father of his right of self-representation (see Matter of Kent v Kent, 29 A.D.3d 123, 129-130; Nimkoff v Nimkoff, 18 A.D.3d 344, 346). The father did not engage in any disruptive conduct that would prevent the fair and orderly exposition of the issues (see Matter of Kathleen K. [Steven K.], 17 N.Y.3d at 385; People v McIntyre, 36 N.Y.2d 10, 18; cf. Matter of Aiden XX. [Jesse XX.], 104 A.D.3d 1094, 1097). Accordingly, the Family Court should not have deprived the father of his right to self-representation (see Matter of Massey v Van Wyen, 108 A.D.3d at 551; cf. Faretta v California, 422 U.S. 806; People v McIntyre, 36 N.Y.2d 10).

         Moreover, the Family Court should not have entered a permanent order of supervised visitation without conducting a hearing (see S.L. v J.R., 27 N.Y.3d 558, 564). Where, as here, facts material to a best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required (see id. at 564; Obey v Degling, 37 N.Y.2d 768, 770; Matter of Izquierdo v Santiago, 151 A.D.3d 967, 968).

         Accordingly, the order appealed from must be reversed, the father's petitions reinstated, and the matters remitted to the Family Court, Westchester County, for a hearing on the father's petition for custody and his petition alleging violation of the parties' custody agreement incorporated in the judgment of divorce, and the mother's family offense petition, at which the father shall be permitted to proceed pro se, and, thereafter, determinations of the petitions on the merits. Further, in light of the court's unreasonable refusal to honor the father's right to self-representation, ...


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