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

684
CAF 10-02092
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, GORSKI, AND MARTOCHE, JJ.


IN THE MATTER OF MINDY L. HOWARD,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STEVE W. HOWARD, RESPONDENT,
AND SHIRLEY MCLOUGHLIN, RESPONDENT-RESPONDENT.


LINDA M. CAMPBELL, SYRACUSE, FOR PETITIONER-APPELLANT.

AMDURSKY, PELKY, FENNELL & WALLEN, P.C., OSWEGO (COURTNEY S. RADICK OF
COUNSEL), FOR RESPONDENT-RESPONDENT.

STEPHANIE N. DAVIS, ATTORNEY FOR THE CHILD, OSWEGO, FOR APRIL H.


     Appeal from an order of the Family Court, Oswego County (Kimberly
M. Seager, J.), entered September 17, 2010 in a proceeding pursuant to
Family Court Act article 6. The order dismissed the petition for
modification of custody.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the petition is
reinstated and the matter is remitted to Family Court, Oswego County,
for further proceedings in accordance with the following Memorandum:
Petitioner mother appeals from an order dismissing her pro se petition
to modify an order of custody entered upon consent. That prior order,
inter alia, awarded the mother and respondent grandmother joint legal
custody of the child and awarded the grandmother primary physical
custody of the child. We agree with the mother that Family Court
erred in dismissing her petition without first receiving a report from
the Referee and providing the mother an opportunity to object to it
(see CPLR 4320 [b]; 22 NYCRR 202.44 [a]; see also Matter of Wilder v
Wilder, 55 AD3d 1341). The record establishes that the Referee was
authorized only to hear the matter and issue a report inasmuch as
there is no evidence that the parties consented to referral to the
Referee for a final determination on the petition (see Wilder, 55 AD3d
1341). We further agree with the mother that the Referee’s failure to
advise her of the right to counsel pursuant to Family Court Act § 262
(a) (v) constitutes reversible error (see Matter of Arlene R. v
Wynette G., 37 AD3d 1044). “The deprivation of a party’s right to
counsel guaranteed by [that] statute ‘requires reversal, without
regard to the merits of the unrepresented party’s position’ ” (Matter
of Collier v Norman, 69 AD3d 936, 937). We therefore reverse the
order, reinstate the mother’s petition and remit the matter to Family
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                                                          CAF 10-02092

Court for further proceedings on the petition.




Entered:   June 10, 2011                         Patricia L. Morgan
                                                 Clerk of the Court
