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

11
CAF 12-00962
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


IN THE MATTER OF ALICIA A. WRIGHT,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

AMY E. WALKER, RESPONDENT-APPELLANT,
AND KEVIN NOLTEE, RESPONDENT.


SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-APPELLANT.

TIFFANY M. SORGEN, ATTORNEY FOR THE CHILD, CANANDAIGUA, FOR ANESSA N.


     Appeal from an order of the Family Court, Ontario County (Stephen
D. Aronson, A.J.), entered May 21, 2012 in a proceeding pursuant to
Family Court Act article 6. The order granted the petition.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Ontario County, for further proceedings in
accordance with the following Memorandum: Respondent Amy E. Walker,
the grandmother of the subject child, appeals from an order granting
the petition of petitioner mother to modify an order of custody
entered upon consent. That prior order, inter alia, awarded the
grandmother, the mother, and respondent Kevin Noltee, the child’s
father, joint legal custody of the child and awarded the grandmother
primary physical custody of the child. In her petition, the mother
did not seek to modify custody but, rather, she sought only visitation
with the child in the mother’s own home. Family Court granted the
petition, and this Court granted a stay of enforcement of that order
pending appeal.

     We agree with the grandmother that the court committed reversible
error when it failed to advise her of her right to assigned counsel.
Family Court Act § 262 (a) (iii) provides that the court must advise
respondents “in any proceeding under part three of article six of this
act” of their right to be represented by counsel of their own
choosing, their right to an adjournment to confer with counsel, and
their right to have counsel assigned by the court in any case where
they are financially unable to obtain their own counsel. The Attorney
for the Child (AFC) contends that, although the Second and Third
Departments have held that respondents in visitation proceedings are
entitled to assigned counsel (see e.g. Matter of Samuel v Samuel, 33
AD3d 1010, 1010-1011; Matter of Wilson v Bennett, 282 AD2d 933, 934),
this Court has not adopted that position. Contrary to the contention
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                                                         CAF 12-00962

of the AFC, this Court has not squarely addressed the issue whether
respondents in visitation proceedings are entitled to the benefit of
section 262. We are compelled to do so now, and we concur in the
result reached by the Second and Third Departments.

     The statute expressly provides that respondents in “any
proceeding under part three of article six of [the Family Court Act]”
are entitled to assigned counsel and the court is mandated to advise
them of that right (§ 262 [a] [iii] [emphasis added]). “Although
Family Court Act article 6, part 3 is entitled ‘custody,’ the cited
portion of the Family Court Act delineates the jurisdiction of Family
Court, which expressly encompasses the right to determine visitation
issues and/or modify prior visitation orders (see, Family Ct Act §§
651, 652). Thus, although . . . the word ‘visitation’ does not appear
anywhere in Family Court Act § 262, a proceeding to modify a prior
order of visitation plainly is a proceeding under Family Court Act
article 6, part 3 and, hence, falls within the purview of the assigned
counsel statute” (Wilson, 282 AD2d at 934; see Samuel, 33 AD3d at
1010-1011; Matter of Bernard UU. v Kelly VV., 28 AD3d 880, 881; Matter
of Grayson v Fenton, 8 AD3d 696, 696).

     We thus conclude that the grandmother, as a respondent in a
proceeding under Family Court Act article six, part three, was
entitled to be advised of her right to assigned counsel and to be
provided with assigned counsel, if financially eligible. “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” (Matter of Brown v Wood, 38
AD3d 769, 770; see Wilson, 282 AD2d at 935; see also Matter of Howard
v Howard, 85 AD3d 1587, 1588). We therefore reverse the order and
remit the matter to Family Court for further proceedings on the
petition.

     In view of our determination, we do not reach the remaining
issues raised by the grandmother.




Entered:   February 1, 2013                     Frances E. Cafarell
                                                Clerk of the Court
