IN RE: ANNA H. MORGAN (2015)

MEMORANDUM AND ORDER

PAUL SKAVINA, ATTORNEY FOR THE CHILD, ROME.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  On appeal from an order of custody and visitation entered following a hearing pursuant to Family Court Act article 6, respondent-petitioner father contends that Family Court erred in vacating a prior order of custody and visitation entered upon the consent of the parties and in conducting a de novo hearing.   We reject that contention.   It is well established that a court retains inherent authority to vacate its own order in the interest of justice, even when entered on consent (see Matter of Chomik v. Sypniak, 70 AD3d 1336, 1336–1337).  “Indeed, the court's power to [vacate an order in the interest of justice] is inherent and ‘does not depend upon any statute’ “ (Ruben v American & Foreign Ins. Co., 185 A.D.2d 63, 67;  see Matter of Delfin A., 123 A.D.2d 318, 320).   Here, petitioner-respondent mother had the right to the assistance of counsel in this custody proceeding (see § 262[a][v];  Matter of Kristin R.H. v. Robert E.H., 48 AD3d 1278, 1279), and the conceded failure on the part of the court to advise her of that right was a sufficient basis for vacating the resulting order in the interest of justice (see generally Delfin A., 123 A.D.2d at 319–320).

Frances E. Cafarell

Clerk of the Court