Fralix v. Thornock

9 A.D.3d 890, 779 N.Y.S.2d 687, 2004 N.Y. App. Div. LEXIS 9531

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 9, 2004
• Status: Published

Opinion

Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), entered January 10, 2003. The order granted the parties joint legal custody of their child with primary physical custody to petitioner and visitation to respondent.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Petitioner commenced this proceeding seeking sole custody of the parties’ child after respondent was incarcerated. Petitioner contends that the untimely appointment of counsel by Family Court to represent him was prejudicial and deprived him of his right to counsel. We disagree. Although the court did not advise petitioner of his rights pursuant to Family Ct Act § 262 (a) (v) at the first court appearance, the court eventually assigned counsel to represent him on his petition (cf. Matter of Wilson v Bennett, 282 AD2d 933, 934 [2001]). At the court proceedings when petitioner was present without counsel, no hearings were held, and the court resolved only temporary issues of visitation (cf. Matter of DeMarco v Raftery, 242 AD2d 625, 626 [1997]). Petitioner further contends that the court erred in assigning as his counsel the law guardian who had represented another child of respondent. Petitioner failed to object to the assignment of the former law guardian as his counsel and thus failed to preserve his contention for our review. In any event, the record establishes that petitioner was not the father of that child, and that child was the subject of a separate custody proceeding between the child’s father and respondent herein that was concluded prior to the assignment of counsel for petitioner. Present—Green, J.P., Hurlbutt, Kehoe, Martoche and JJ.