IN RE: Tammy MOLONEY (2005)

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Ayres, J.), dated March 26, 2004, which, inter alia, awarded custody of the parties' children to the mother.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the petition is dismissed.

 The Family Court improperly awarded custody of the children to the mother without considering the incarcerated father's written request for legal representation, thereby impairing the father's “right to the assistance of counsel” (Family Ct. Act § 262[a];  see Matter of Ella B., 30 N.Y.2d 352, 356-357, 334 N.Y.S.2d 133, 285 N.E.2d 288).   The deprivation of a party's fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party's position (see Matter of Wilson v. Bennett, 282 A.D.2d 933, 934, 724 N.Y.S.2d 520;  Matter of Dominique L.B., 231 A.D.2d 948, 647 N.Y.S.2d 639;  Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 506 N.Y.S.2d 198;  Matter of Orneika J., 112 A.D.2d 78, 80, 491 N.Y.S.2d 639).   As a result, the Family Court's order must be reversed.

Furthermore, under the circumstances of this case, the mother's original petition for custody in the Family Court should have been dismissed, as both the matrimonial and custody issues are currently being litigated in the Supreme Court (see Ramirez v. Ramirez, 171 A.D.2d 784, 567 N.Y.S.2d 505;  Matter of Shirley M. v. William M., 152 Misc.2d 144, 575 N.Y.S.2d 251).