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IN RE: Jason McNEILL, appellant, v. Mary RESSEL, et al., respondents.
We are asked to determine whether a brief deprivation of the father's right to counsel during a hearing concerning the custody and visitation of the subject child warrants a new hearing. We hold that a new hearing is not warranted.
The father commenced this proceeding to obtain custody of his infant son. Custody was also sought by the maternal grandmother, Mary Ressel, and the mother, Michelle Caracappa. After hearings held in March, May, and June 1997, the Family Court, inter alia, awarded Ressel permanent custody of the child and granted the father visitation, not to include overnight stays.
Contrary to the father's argument on appeal, review of the record reveals that Ressel presented evidence of “extraordinary circumstances” sufficient to rebut the presumption of custody in favor of the parents and to turn the inquiry to that of the best interests of the child (see, Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 387 N.Y.S.2d 821, 356 N.E.2d 277; Matter of Jordan v. Cumberbatch, 237 A.D.2d 522, 656 N.Y.S.2d 906; Matter of Commissioner of Social Servs. of City of N.Y. [Tyrique P.], 216 A.D.2d 387, 629 N.Y.S.2d 47). Further, the award of custody to Ressel was in the best interests of the child (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Bennett v. Jeffreys, supra; Klat v. Klat, 176 A.D.2d 922, 575 N.Y.S.2d 536).
The father is not entitled to a new hearing based on a brief deprivation of his right to counsel. After a short recess during the hearings, the father's attorney failed to appear at the designated time. The court compelled the father, over his objection, to take the stand to be questioned by the law guardian. The questioning, which was of brief duration and which concerned a very limited area of inquiry, was ended after the father continued to object. During the time that the father was being questioned, his attorney was in the hallway trying to contact a witness by telephone. When counsel for the father learned of what had transpired, she moved for a mistrial. The court denied the motion, noting that the father had been without counsel for only a brief period (approximately five minutes) and that the court had not been influenced “in any way, shape or form by the scant testimony that was given”. Further, as a curative measure, the court read into the record a transcript of what had transpired during counsel's absence and permitted counsel to make objections and to question the father about any matters raised. Counsel made no specific objections to the testimony elicited, but did question the father about various matters raised by the law guardian.
It was error to compel the father to take the stand without his attorney being present. “In placing [the court's] interest in averting further delay above the interests of the parties, the Family Court gave unacceptable prominence to expediency” (Matter of Radjpaul v. Patton, 145 A.D.2d 494, 497, 535 N.Y.S.2d 743; see also, Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 506 N.Y.S.2d 198). However, on the facts presented, given the origin, genesis, and purpose underlying the right to counsel in a custody proceeding, we disagree with the father that the same analysis that might be applicable to the deprivation of counsel in a criminal proceeding must be applied here and that he must be afforded a new hearing (see, e.g., People v. Margan, 157 A.D.2d 64, 554 N.Y.S.2d 676).
In Matter of Ella B., 30 N.Y.2d 352, 334 N.Y.S.2d 133, 285 N.E.2d 288, the Court of Appeals addressed the importance of the assistance of counsel in civil proceedings concerning a parent and child, holding that an indigent parent, faced with the loss of a child's society and possible criminal charges pursuant to a termination proceeding based on allegations of neglect, was entitled to assigned counsel. The court found a parent's concern for the liberty of his or her child, as well as for the care and control of such child, was “too fundamental an interest and right” to be relinquished to the State without a meaningful opportunity to be heard, which included the right to counsel (Matter of Ella B., supra, at 356, 334 N.Y.S.2d 133, 285 N.E.2d 288). To hold otherwise, the court stated, would be to deny an unrepresented parent the constitutional right to due process and equal protection of law implicated by the “ ‘gross inherent imbalance of experience and expertise’ ” between the State and an unrepresented party (Matter of Ella B., supra, at 357, 334 N.Y.S.2d 133, 285 N.E.2d 288, quoting Cleaver v. Wilcox, 40 U.S. Law Week 2658, 2659; see also, People v. Smith, 62 N.Y.2d 306, 312, 476 N.Y.S.2d 797, 465 N.E.2d 336).
Soon thereafter the Legislature, in response to both Matter of Ella B. (supra) and growing courtroom practice, enacted, inter alia, Family Court Act § 262 (L. 1975, ch. 682). That section expanded an indigent parent's right to assigned counsel to encompass instances where the State was not involved as a party and the parent was not facing possible criminal charges, including, as here, child custody proceedings (see, Family Court Act § 262[a] [v] ). The assistance of counsel in child custody proceedings helps assure that determinations concerning the fundamental parental rights identified in Matter of Ella B. (supra), and those concerning the best interests of a child, are not made without a fully developed record, after a full and fair hearing (see, Matter of Sasha S., 256 A.D.2d 468, 682 N.Y.S.2d 99; Matter of Radjpaul v. Patton, 145 A.D.2d 494, 535 N.Y.S.2d 743; Matter of Edward R., 123 A.D.2d 866, 507 N.Y.S.2d 647; Matter of Patricia L. v. Steven L., supra). Thus, in a child custody proceeding, a parent must be afforded a meaningful opportunity to appear and to present evidence and arguments in his or her favor, which includes the right to the assistance of counsel (see, Matter of Sasha S., supra; Matter of Radjpaul v. Patton, supra; Matter of Patricia L. v. Steven L., supra). Here, on the facts presented, the father's right to a meaningful opportunity to appear and to present evidence and arguments on his behalf was not prejudiced by the brief period he was without his attorney, and the court's determinations as to custody and visitation were not made without the benefit of a fully developed record (cf., Matter of DeMarco v. Raftery, 242 A.D.2d 625, 662 N.Y.S.2d 138; Matter of Radjpaul v. Patton, supra; Matter of Patricia L. v. Steven L., supra; Matter of Jackson v. Lee, 96 A.D.2d 760, 465 N.Y.S.2d 314; Matter of Shalom S., 88 A.D.2d 936, 451 N.Y.S.2d 165). Indeed, were we to remit the matter for a new hearing, which would have implications not only for the other parties, but also for the child, the father would be entitled to no more than he has already been afforded. Accordingly, a new hearing is neither required nor warranted (cf., Matter of Smiley, 36 N.Y.2d 433, 369 N.Y.S.2d 87, 330 N.E.2d 53; Matter of Ella B., supra, at 358, 334 N.Y.S.2d 133, 285 N.E.2d 288; Matter of Tavolacci v. Garges, 124 A.D.2d 734, 508 N.Y.S.2d 236; Matter of Reidy v. Thomas ZZ., 113 A.D.2d 281, 495 N.Y.S.2d 742; In re Elizabeth M., 232 Cal.App.3d 553, 283 Cal.Rptr. 483).
The father's remaining contentions lack merit.
ORDERED that the order is affirmed, with costs.
RITTER, J.P.
ALTMAN, GOLDSTEIN, and McGINITY, JJ., concur.
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Decided: July 19, 1999
Court: Supreme Court, Appellate Division, Second Department, New York.
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