LEE v. LEE (2025)

Order, Supreme Court, New York County (Douglas E. Hoffman, J.), entered June 25, 2024, which, after trial, granted legal custody and primary residential custody of the subject children to defendant father, and set a parenting time schedule, unanimously affirmed, without costs.

While plaintiff mother had a statutory right to counsel in these proceedings (see Family Ct Act § 262[a]), she also “had the right to waive counsel and proceed pro se, provided [she] did so knowingly, intelligently, and voluntarily” (Matter of Angel N. v. Elizabeth A., 169 A.D.3d 596, 596–597, 95 N.Y.S.3d 50 [1st Dept. 2019]).  To determine if a party has validly waived the right to counsel, a court must conduct a “searching inquiry” to ensure that the waiver has been made knowingly, voluntarily, and intelligently (People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154 [2002]);  “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 Angel N., 169 A.D.3d at 596, 95 N.Y.S.3d 50 [internal quotation marks omitted]).

Here, the court conducted the requisite inquiry.  When the mother's counsel validly withdrew from representation, the mother stated, unequivocally, that she would either obtain counsel or proceed pro se, but in any event did not want any delay of the custody trial, which by that point had lasted nearly 10 days.  The court advised the mother of the advantages of retaining counsel, encouraged her to do so, and provided several avenues for her to obtain representation or a referral.  However, if she proceeded pro se, she would have to pick up where counsel left off mid-cross-examination and would be held to the same rules of evidence as an attorney.  The mother understood this, specifically articulating her understanding that she would be placed at a disadvantage.  She twice declined the court's offer to cancel the next trial date to afford her more time to retain counsel.  Thus, the mother clearly understood the dangers of proceeding without counsel, and her waiver was knowing, intelligent and voluntary.

To prevail on her ineffective assistance of counsel claim, the mother had to demonstrate that she was deprived of meaningful representation by reason of counsel's deficiency and that she suffered actual prejudice as a result (Matter of Judith L.C. v. Lawrence Y., 179 A.D.3d 616, 617, 118 N.Y.S.3d 573 [1st Dept. 2020], lv denied 35 N.Y.3d 911, 2020 WL 5047416 [2020]).  The mother's sole argument in support of her claim is counsel's advice that she assert her right against self-incrimination when questioned about the source of funds used for one child's tuition payment.  To the extent this was error, it was not the sole basis for the court's determination that her testimony was not credible, and in any event, this concern on her counsel's part did not demonstrate any absence of strategic or legitimate explanation, nor was it so egregious as to have deprived her of a fair trial (see e.g. People v. Watkins, 42 N.Y.3d 635, 640, 226 N.Y.S.3d 140, 250 N.E.3d 1172 [2024], cert denied ––– U.S. ––––, 145 S.Ct. 459, ––– L.E.2d –––– [2024]).

Although this Court's authority in custody matters is as broad as that of the trial court, the trial court's findings and determination are accorded great deference on appeal (Matter of Mildred S.G. v. Mark G., 62 A.D.3d 460, 460, 879 N.Y.S.2d 402 [1st Dept. 2009]), since that court had the opportunity to assess the witnesses’ demeanor and credibility (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982];  Matter of Shirley D.-A. v. Gregory D. A., 168 A.D.3d 635, 635, 93 N.Y.S.3d 28 [1st Dept. 2019]).  The court's factual determinations should not be set aside unless they lack a “sound and substantial evidentiary basis” (Matter of Everett [Basdeo M.], 211 A.D.3d 641, 642, 181 N.Y.S.3d 65 [1st Dept. 2022]).  Here, there was a sound basis for the court's award of sole legal and primary physical custody to the father.  It was clear from the record that the parties were unable to engage in joint decision-making, which was particularly evident by the mother's unilateral and at times secretive acts in attempting to enroll the younger child in school against the father's wishes and court order.  The court's conclusions about the mother's lack of credibility is also well supported by the record, and to the extent that both parties engaged in domestic violence, that factor does not favor either parent (see Matter of Scott v. Thompson, 166 A.D.3d 627, 629, 87 N.Y.S.3d 211 [2d Dept. 2018]).

Finally, a child's preference for a particular parent, while a factor to be considered, is not determinative and the court was not bound to abide by their wishes (see Matter of Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Matter of Susan A. v. Ibrahim A., 96 A.D.3d 439, 440, 945 N.Y.S.2d 688 [1st Dept. 2012]), particularly where, under the particular circumstances of this case, the trial court concluded that the children were likely being unduly influenced by the mother.