Matter of Rovira v. Roth

140 A.D.3d 1173, 33 N.Y.S.3d 760

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 29, 2016
• Docket: 2015-12147
• Status: Published

Opinion

— Appeal, by permission, from an order of the Family Court, Rockland County (Jo Ann Friia, J.), entered November 12, 2015. The order, insofar as appealed from, upon granting the motion of the father’s assigned counsel to be relieved of his assignment, denied the father’s application for the assignment of new counsel. By decision and order on motion dated December 30, 2015, this Court granted the father’s motion to stay all proceedings pending hearing and determination of the appeal.

Ordered that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the father’s application for the assignment of new counsel is granted.

In this custody and visitation proceeding pursuant to Family Court Act article 6, the Family Court granted the motion of the father’s assigned counsel to be relieved of his assignment and denied the father’s application to be assigned new counsel. The father appeals.

Contrary to the Family Court’s determination, the father, who had a right to assigned counsel pursuant to Family Court Act § 262, did not forfeit his right to counsel (see People v Issac, 121 AD3d 816 [2014]; People v Bullock, 75 AD3d 1148 [2010]). Moreover, the father did not knowingly, voluntarily, and intelligently waive his right to counsel. Accordingly, upon granting the motion of the father’s assigned counsel to be relieved of his assignment, the Family Court should have granted the father’s application for the assignment of new counsel (see Matter of Tarnai v Buchbinder, 132 AD3d 884 [2015]).

Balkin, J.P., Miller, Hinds-Radix and Brathwaite Nelson, JJ., concur.