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Supreme Court, Appellate Division, Second Department, New York.

IN RE: Kevin WILLIAMS, respondent, v. Loretta BENTLEY, appellant.

Decided: February 21, 2006

THOMAS A. ADAMS, J.P., PETER B. SKELOS, STEVEN W. FISHER, and ROBERT J. LUNN, JJ. Stanley E. Gelzinis, Huntington, N.Y., for appellant. Richard M. Gold, Bohemia, N.Y., Law Guardian for the children.

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Suffolk County (Lehman, J.), dated October 25, 2004, which, after a hearing, awarded custody of the children to the father.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for a new hearing before a different Judge and a new determination thereafter;  and it is further,

ORDERED that pending the new hearing and determination, the children shall remain in the custody of the father.

 The Family Court improperly conducted a custody hearing in the absence of the mother's counsel and awarded custody to the father, stating that it intended to avoid delaying the hearing and disposition of the custody matter.   The mother repeatedly told the Family Court that she would not proceed in the absence of her lawyer and that she would wait for her lawyer.

Requiring the mother to try the custody matter without benefit of counsel impermissibly placed the court's interest in preventing delay above the interest of the parents and the children, and violated the mother's right to be represented by counsel (see Matter of Moloney v. Moloney, 19 A.D.3d 496, 798 N.Y.S.2d 455;  Matter of Radjpaul v. Patton, 145 A.D.2d 494, 535 N.Y.S.2d 743;  Matter of Patricia L. v. Steven L., 119 A.D.2d 221, 506 N.Y.S.2d 198;  see also Family Ct. Act § 262[a];  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 is a denial of due process and requires reversal, without regard to the merits of the unrepresented party's position (see Matter of Moloney v. Moloney, supra;  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., supra;  Matter of Orneika J., 112 A.D.2d 78, 80, 491 N.Y.S.2d 639).   Accordingly, the order must be reversed.

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