IN RE: KRISTIN R.H. (2008)

 Petitioner mother appeals from an order granting respondent father custody of the parties' two children, with visitation to the mother.   We agree with the mother that she was denied the right to assistance of counsel at the custody hearing inasmuch as Family Court failed to obtain her valid waiver of the right to counsel before it allowed her to proceed pro se.   The mother was assigned counsel at an earlier stage of the proceedings but, on the day of the custody hearing, her assigned counsel renewed his motion to withdraw, and the motion was granted upon the mother's consent.   The court denied the mother's request for an adjournment and immediately commenced the hearing, with the mother proceeding pro se.

 A parent has “the right to the assistance of counsel” in a custody proceeding (Family Ct. Act § 262[a][v] ).  Although that right may be waived and the parent may proceed pro se, the record must indicate that the waiver was knowing, voluntary and intelligent (see Matter of Hassig v. Hassig, 34 A.D.3d 1089, 1090-1091, 825 N.Y.S.2d 165;  see also Matter of Jetter v. Jetter, 43 A.D.3d 821, 844 N.Y.S.2d 322;  Matter of Anthony K., 11 A.D.3d 748, 749, 783 N.Y.S.2d 418).   Thus, the parent must have “a sufficient awareness of the relevant circumstances and probable consequences of the waiver” (Matter of Evan F., 29 A.D.3d 905, 907, 815 N.Y.S.2d 697), and the waiver “cannot rest upon cursory comments, but must be supported by a ‘searching inquiry’ ” (Anthony K., 11 A.D.3d at 749, 783 N.Y.S.2d 418, quoting People v. Arroyo, 98 N.Y.2d 101, 103, 745 N.Y.S.2d 796, 772 N.E.2d 1154).   Here, the court relieved counsel after asking the mother only whether she had any objection to counsel's motion to withdraw.   We conclude that the court's single question did not constitute the requisite searching inquiry to enable the court to ascertain whether the mother understood the dangers and disadvantages of self-representation (see Jetter, 43 A.D.3d 821, 844 N.Y.S.2d 322;  Hassig, 34 A.D.3d at 1091, 825 N.Y.S.2d 165;  cf. Anthony K., 11 A.D.3d at 749-750, 783 N.Y.S.2d 418).   We therefore reverse the order and remit the matter to Family Court for a new hearing before a different judge.

In light of our determination, we do not reach the mother's remaining contentions.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Chautauqua County, for a new hearing.

MEMORANDUM: