Appeals Court Vacates Custody Judgment After Attorney Withdraws from the Case

In the case of Brandel v. Brandel, the parties were married in 2008 and had one child together who was born in 2012. The plaintiff initiated a divorce in April 2015, seeking sole custody of the couple’s child. During a family court proceeding in May 2015, the parties agreed to a resolution in court. In an order of custody and parental access issued by the consent of both parties, the family court awarded the defendant primary physical custody of the child. During that divorce trial, the defendant’s attorney was permitted to withdraw and the defendant proceeded pro se (he represented himself). At the conclusion of the trial, the Supreme Court issued a judgment of divorce awarding the plaintiff primary physical custody of the child, with the defendant having certain parental access and visitation rights.

The defendant appealed the action. Under New York State law, a divorce litigant has a statutory right to counsel for the custody portion of the litigation. In this case, the defendant’s attorney was permitted to withdraw during the trial and the defendant proceeded to represent himself. In this case, the Supreme Court never determined whether the defendant was “unequivocally, voluntarily, and intelligently” waiving his right to counsel. The court also forgot whether to inquire whether the defendant understood the risks and disadvantages of proceeding pro se.

As a result, the appeals court decided that they would modify the judgment of divorce by deleting the provision that awarded the plaintiff primary physical custody of the child. The court did not consider the merits of the defendant’s position. Only that he was forced by circumstance to represent himself and was never admonished by the court for doing so. In addition, all litigants in a custody proceeding have a right to counsel during that portion of a family law trial.

Analysis of the case and appeal 

The appeals court remanded the case back to the trial court to determine whether or not the defendant was entitled to assigned counsel. Once both parties to the action had counsel, the arguments could proceed from both sides. The order of the appeals court vacated a judgment in favor of the plaintiff awarding her primary custody over the child. The defendant appealed the matter because he thought that the ruling was unfair and unfairly reached. The appeals court directed the trial court to conduct a more detailed inquiry to determine whether the defendant is eligible for assigned counsel.

Talk to a Rockland County Divorce Lawyer Today 

The aforementioned case underscores the importance of having a good attorney at your side when you are arguing before the court. In the case mentioned above, the litigant’s attorney withdrew and the trial court reversed its decision to assign the defendant primary custody of the child. It’s so important, in fact, that the law makes it a statutory right for any participant in custody litigation to have an attorney assigned to them if they cannot afford one. The Law Office of Robert S. Sunshine represents the interests of Rockland County residents pursuing a divorce. Call our Westchester County family lawyers today to schedule an appointment, and we can begin discussing your next steps right away.

Source:

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