IN RE: Tanisha GENERAL (2006)

In a custody proceeding pursuant to Family Court Act article 6, Victoria R. General, the maternal great aunt, appeals from an order of the Family Court, Kings County (Grosvenor, J.), dated October 25, 2005, which, after a hearing, granted the mother's petition to modify an order of the same court dated November 20, 2001 (Weinstein, J.), awarding custody of the subject child to the maternal great aunt, and awarded custody to the mother.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance herewith;  and it is further,

ORDERED that pending a new determination of the mother's petition for custody of the subject child, the child shall remain with the mother.

 The Family Court erred in failing to advise Victoria R. General, the maternal great aunt, of her right to counsel in this custody proceeding.   Family Court Act § 262 confers a statutory right to counsel on certain persons (see Family Ct. Act §§ 261, 262[a] ).   Among those persons is “the respondent in any proceeding under part three of article six of this act” (Family Ct. Act § 262[a][iii];  see Matter of Bernard UU. v. Kelly VV., 28 A.D.3d 880, 814 N.Y.S.2d 298;  Matter of Perez v. Arebalo, 13 A.D.3d 85, 87, 786 N.Y.S.2d 441;  Matter of Alexander v. Maharaj, 299 A.D.2d 354, 354, 750 N.Y.S.2d 100;  Matter of Wilson v. Bennett, 282 A.D.2d 933, 934, 724 N.Y.S.2d 520;  Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 224, 506 N.Y.S.2d 198).   The statute further provides as follows:

“When such person first appears in court, the judge shall advise such person before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same”

(Family Ct. Act § 262[a] ).

Here, the mother's petition was one pursuant to Family Court Act § 651(b), part 3, article 6 of the Family Court Act. Since the maternal great aunt was the respondent in a proceeding brought under part three of article six of the Family Court Act, she falls within the statutory category defined by Family Court Act § 262(a)(iii).   Therefore, she is a person entitled to counsel under Family Court Act § 262(a).

 Although the order appealed from stated that the maternal great aunt was advised of her right to counsel, there is nothing in the hearing transcript indicating that she was so advised (see Matter of Bernard UU. v. Kelly VV., supra;  Matter of Wilson v. Bennett, supra at 935, 724 N.Y.S.2d 520).   Nor does the record reflect that she waived her right to counsel (see Matter of Bernard UU. v. Kelly VV., supra;  Matter of Wilder v. Bufe, 25 A.D.3d 827, 828, 808 N.Y.S.2d 784;  Matter of Wilson v. Bennett, supra;  Matter of Gaudette v. Gaudette, 263 A.D.2d 620, 621, 692 N.Y.S.2d 809;  cf. Matter of Jazmone S., 307 A.D.2d 320, 321-322, 762 N.Y.S.2d 811;  Matter of F. Children, 199 A.D.2d 81, 81, 604 N.Y.S.2d 956).   In the absence of a waiver, the Family Court's apparent failure to advise the maternal great aunt of her statutory rights under Family Court Act § 262 constituted reversible error (see Matter of Bernard UU. v. Kelly VV., supra;  Matter of Williams v. Bentley, 26 A.D.3d 441, 809 N.Y.S.2d 205;  Matter of Moloney v. Moloney, 19 A.D.3d 496, 497, 798 N.Y.S.2d 455;  Matter of Knight v. Griffith, 13 A.D.3d 449, 450, 787 N.Y.S.2d 53;  Matter of Wilson v. Bennett, supra;  Matter of Perez v. Arebalo, supra;  Matter of Patricia L. v. Steven L., supra at 224-225, 506 N.Y.S.2d 198).

 Further, under the circumstances presented, the Family Court's failure to appoint a Law Guardian to represent the subject child's interests constituted an abuse of discretion (see Family Ct. Act § 241, 249[a];  Grotke v. Harris, 294 A.D.2d 957, 958, 741 N.Y.S.2d 480;  Vecchiarelli v. Vecchiarelli, 238 A.D.2d 411, 413, 656 N.Y.S.2d 337;  cf. Matter of Wilson v. Bennett, supra;  Matter of Ebel v. Urlich, 273 A.D.2d 530, 532, 709 N.Y.S.2d 237).

Accordingly, we remit the matter to the Family Court, Kings County, for a new hearing at which the maternal great aunt shall be fully advised of her right to counsel pursuant to Family Court Act § 262 and at which time a Law Guardian shall be appointed to represent the subject child's interests in the proceeding.

 We note that, “as between a parent and a nonparent, the parent has the superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right due to surrender, abandonment, persisting neglect, unfitness, or other like extraordinary circumstances” (Matter of Dungee v. Simmons, 307 A.D.2d 312, 312-313, 762 N.Y.S.2d 514;  see Matter of Male Infant L., 61 N.Y.2d 420, 426, 474 N.Y.S.2d 447, 462 N.E.2d 1165;  Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 544, 387 N.Y.S.2d 821, 356 N.E.2d 277;  Matter of Cambridge v. Cambridge, 13 A.D.3d 443, 786 N.Y.S.2d 558;  Matter of McGraw v. McGraw, 258 A.D.2d 464, 685 N.Y.S.2d 251;  Matter of Carosi v. Bloom, 225 A.D.2d 692, 639 N.Y.S.2d 486).   Only when extraordinary circumstances are proven will the court examine the best interests of the child (see Matter of Campbell v. Brewster, 9 A.D.3d 620, 621, 779 N.Y.S.2d 665;  Matter of Dungee v. Simmons, supra at 313, 762 N.Y.S.2d 514;  Matter of Williams v. Dunston, 202 A.D.2d 681, 682, 609 N.Y.S.2d 643;  Matter of Nadia Kay R., 125 A.D.2d 674, 676, 509 N.Y.S.2d 862).   Upon remittitur, the maternal great aunt will have the burden of proving the existence of extraordinary circumstances (see Matter of Tolbert v. Scott, 15 A.D.3d 493, 495-496, 790 N.Y.S.2d 495).