Matter of Carlene R. v Heather A.
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Attorneys and Parties
Brief Summary
Family law visitation dispute involving a parent's statutory right to counsel in a Family Court Act article 6 proceeding.
Family Court granted the maternal grandmother biweekly supervised visitation with the child at a public location.
The Appellate Division reversed the Family Court order granting visitation and remitted the matter for further proceedings.
The mother was deprived of her right to counsel under Family Ct Act § 262 (a) [respondents in visitation proceedings have a right to be represented by counsel and, if financially unable to obtain counsel, have the right to have counsel assigned by the court]. The record showed no knowing, intelligent and voluntary waiver, and it did not establish the egregious conduct necessary to forfeit assigned counsel.
Background
The petitioner grandmother sought visitation with her grandchild, born in 2020. After an initial petition filed in October 2023 was dismissed, she filed an amended petition in August 2024. At the fact-finding hearing, the mother initially had assigned counsel, but that attorney was relieved mid-hearing after the grandmother completed her direct case and cross-examination. A second assigned attorney later appeared, then moved to withdraw; despite the mother's opposition and her statement that she could not afford private counsel, Family Court granted the motion and announced that no further assigned counsel would be provided. When the hearing resumed, the mother appeared without counsel, requested representation and an adjournment to prepare, and repeatedly stated that she did not know how to proceed. Family Court denied those requests, directed her to continue pro se, and warned that if she did not proceed the visitation petition would be granted.
Lower Court Decision
Family Court concluded the proceeding by making its temporary order final and awarding the grandmother biweekly supervised visitation with the child in a public setting.
Appellate Division Reversal
The Appellate Division held that the mother did not waive counsel and instead was forced to proceed pro se. The court emphasized that a valid waiver must be explicit, intentional, and made knowingly, intelligently and voluntarily after a searching inquiry into the dangers of self-representation. Although a litigant can forfeit assigned counsel through persistent threatening, abusive, obstreperous, and uncooperative conduct, that is an extreme last-resort remedy. Here, the record did not clearly show the sort of egregious conduct required for forfeiture, nor did it support the claim that the mother's request for new assigned counsel was merely a delay tactic. Because deprivation of the statutory right to counsel requires reversal regardless of the merits, the visitation order was reversed and the matter remitted for further proceedings. The court also noted that, on remittal, the father must receive notice because he had been awarded temporary custody while the appeal was pending.
Legal Significance
This decision reinforces that in Family Court visitation proceedings, the right to counsel under Family Ct Act § 262 (a) is strictly protected. Courts may not treat dissatisfaction with counsel or procedural difficulties as an implied waiver. Before allowing a party to proceed without counsel, the court must conduct a searching inquiry and secure a clear waiver, or else build a record demonstrating extraordinary misconduct sufficient to justify forfeiture. If that right is denied, reversal is automatic without regard to the merits.
A Family Court cannot force a parent to proceed pro se in a visitation case simply because multiple assigned attorneys have withdrawn; absent a valid waiver or truly egregious misconduct justifying forfeiture, denying counsel requires reversal.