        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1090
CAF 14-00216
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF ANNA H. MORGAN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JAMES W. PETERSON, JR., RESPONDENT-APPELLANT.
---------------------------------------------
IN THE MATTER OF JAMES W. PETERSON, JR.,
PETITIONER-APPELLANT,

                    V

ANNA H. MORGAN, RESPONDENT-RESPONDENT.


MARY R. HUMPHREY, NEW HARTFORD, FOR RESPONDENT-APPELLANT AND
PETITIONER-APPELLANT.

PAUL A. NORTON, CLINTON, FOR PETITIONER-RESPONDENT AND RESPONDENT-
RESPONDENT.

PAUL SKAVINA, ATTORNEY FOR THE CHILD, ROME.


     Appeal from an order of the Family Court, Oneida County (Julia M.
Brouillette, R.), entered December 19, 2013 in proceedings pursuant to
Family Court Act article 6. The order, among other things, awarded
Anna H. Morgan sole legal custody of the subject child.

     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 AD2d 63, 67; see
Matter of Delfin A., 123 AD2d 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.,
                                 -2-                          1090
                                                         CAF 14-00216

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 AD2d at 319-320).




Entered:   October 9, 2015                      Frances E. Cafarell
                                                Clerk of the Court
