IN RE: BOBI JO B. (2007)

Petitioner-respondent, the mother of the child at issue herein, appeals from an order that, inter alia, modified the existing custody arrangement by transferring primary physical placement of the parties' child from the mother to respondent-petitioner, the child's father.   Less than two weeks before the scheduled trial, the mother informed Family Court that her retained counsel had refused to represent her for their previously agreed-upon fee, and she requested an adjournment of 30 days to enable her to retain new counsel.   The court denied her request, and the court thereafter received a consent to change attorney form signed by the mother prior to the court's denial of her request for an adjournment.   The form purported to substitute an “unknow[n] attorney” for the mother's retained counsel.   When the mother appeared on the scheduled trial date without representation and again requested an adjournment, the court again denied the request, and the mother was forced to proceed pro se.

We conclude that the court abused its discretion in refusing to grant the mother's request for an adjournment to retain counsel (cf. Matter of Matthew K. v. Susan O., 37 A.D.3d 1119, 829 N.Y.S.2d 366, lv. denied 8 N.Y.3d 811, 834 N.Y.S.2d 719, 866 N.E.2d 1049;  Matter of Nicole A., 305 A.D.2d 1039, 758 N.Y.S.2d 884).   The record establishes that the mother's request was not a delay tactic (see generally Lindenman v. Lindenman, 288 A.D.2d 352, 734 N.Y.S.2d 95), nor did it result from her lack of diligence in seeking new representation (cf. Barnaby v. Barnaby, 259 A.D.2d 870, 871, 686 N.Y.S.2d 230;  Matter of Sara KK., 226 A.D.2d 766, 767, 640 N.Y.S.2d 328, lv. denied 88 N.Y.2d 808, 647 N.Y.S.2d 165, 670 N.E.2d 449).   We conclude under the circumstances of this case that the consent to change attorney form signed by the mother was not a knowing, willing and voluntary waiver of her right to counsel (see Matter of Meko M., 272 A.D.2d 953, 708 N.Y.S.2d 787).   We therefore reverse the order and grant a new trial.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and a new trial is granted.

MEMORANDUM: