Assigned Counsel in Family Ct Act Article 6 Visitation: No Denial Absent Knowing Waiver or Egregious Forfeiture

1. Introduction

Matter of Carlene R. v Heather A. (2026 NY Slip Op 04015 [3d Dept June 25, 2026]) addresses a recurring Family Court problem: how to proceed when assigned counsel withdraws (or seeks to withdraw) in an Family Ct Act article 6 visitation proceeding and the respondent parent cannot afford private counsel. The petitioner was the child’s maternal grandmother (Carlene R.), seeking court-ordered visitation with a child born in 2020. The respondent was the child’s mother (Heather A.), opposing visitation.

The key issue on appeal was not the “best interests” merits of grandparent visitation, but whether Family Court deprived the mother of her statutory right to counsel by (i) relieving successive assigned attorneys and then (ii) refusing to assign new counsel and forcing the mother to proceed pro se at the fact-finding hearing.

2. Summary of the Opinion

The Appellate Division, Third Department reversed the visitation order on the law and remitted for further proceedings. The Court held that the mother did not make a knowing, intelligent, and voluntary waiver of counsel, and that the record did not support a finding that she forfeited counsel through egregious misconduct.

Because “the deprivation of a party’s statutory right to counsel requires reversal, without regard to the merits,” the Third Department did not reach the merits of whether the grandmother should receive visitation.

3. Analysis

3.1. Precedents Cited

(a) The statutory right to counsel in visitation proceedings

  • Matter of Samuel v Samuel, 33 AD3d 1010 (2d Dept 2006), and Matter of Wilson v Bennett, 282 AD2d 933 (3d Dept 2001): cited for the baseline rule under Family Ct Act § 262 (a)—respondents in visitation proceedings have a right to counsel, including assigned counsel if financially unable to retain counsel.

(b) What counts as a valid waiver of counsel (and what the court must do)

  • Matter of Hensley v DeMun, 163 AD3d 1100 (3d Dept 2018), and Matter of Saber v Saccone, 192 AD3d 1400 (3d Dept 2021), lv denied 37 NY3d 909 (2021): establish that waiver must be “explicit and intentional,” and that the court must ensure the decision is knowing, intelligent, and voluntary.
  • Matter of Clark v Clark, 101 AD3d 1394 (3d Dept 2012): supplies the “searching inquiry” requirement—courts must ensure a party understands the dangers and disadvantages of self-representation.

(c) Remedy: denial of counsel is structural and requires reversal

  • DiBella v DiBella, 161 AD3d 1239 (3d Dept 2018), and Matter of Renee S. v Heather U., 195 AD3d 1170 (3d Dept 2021): stand for the opinion’s central remedial point—reversal is required without regard to the merits if the statutory right to counsel is denied.
  • Matter of Pugh v Pugh, 125 AD3d 663 (2d Dept 2015), and Matter of Nixon v Christian, 130 AD3d 831 (2d Dept 2015): reinforce that forcing an unwilling litigant to proceed pro se—especially one without a basic understanding of proceedings—compels reversal.

(d) Forfeiture of counsel: a narrow, last-resort doctrine

  • Matter of Veronica LL. v Ethan LL., 248 AD3d 1528 (3d Dept 2026), and Matter of Carilyn S. [Anonymous] v Theresa S. [Anonymous], 248 AD3d 1256 (2d Dept 2026): are cited for the proposition that a litigant may forfeit assigned counsel through a persistent pattern of threatening, abusive, obstreperous, and uncooperative behavior with successive assigned counsel.
  • People v Shanks, 37 NY3d 244 (2021): anchors the limiting principle—forfeiture is an “extreme, last-resort” response based on “egregious conduct.”
  • Matter of Sa'Nai F.B.M.A. [Chaniece T.], 232 AD3d 597 (2d Dept 2024): is used to emphasize that the record must clearly show egregious conduct; otherwise forfeiture is improper.
  • Matter of Leslie QQ. v Daniel RR., 232 AD3d 1086 (3d Dept 2024), compared with Matter of Lillian SS. [Brian SS.], 146 AD3d 1088 (3d Dept 2017), lv denied 29 NY3d 992 (2017): frame the “delay tactic” argument. The Third Department rejected the claim (by the grandmother and attorney for the child) that the mother’s request for new assigned counsel was merely dilatory, distinguishing circumstances where the record supports such a conclusion.

(e) Counsel withdrawal requires an adequate record and inquiry

  • Matter of Richard TT. [Kara VV.], 223 AD3d 1070 (3d Dept 2024), appeal dismissed 41 NY3d 989 (2024): cited in a footnote to criticize the absence of inquiry into whether counsel had “good and sufficient cause” to withdraw— a procedural gap that contributed to the breakdown culminating in denial of counsel.

(f) Appellate practice note on interlocutory orders

  • Matter of Ameillia RR. [Megan SS.-Jered RR.], 112 AD3d 1083 (3d Dept 2013): supports the procedural point that while interlocutory appeals become moot upon entry of a final order, issues from interlocutory orders may be raised on appeal from the final order.

3.2. Legal Reasoning

(a) The court’s core holding: no waiver on this record

The Third Department treated the right to counsel in this visitation case as a statutorily guaranteed protection under Family Ct Act § 262 (a). It then asked whether the mother waived counsel. The answer was no because the record showed:

  • the mother repeatedly requested representation and stated it was her “legal right,”
  • she stated she could not afford to retain private counsel,
  • she sought an adjournment to prepare if forced to proceed pro se and was denied, and
  • Family Court characterized her pro se status as stemming from misunderstanding and the county having reached “the end of the free attorneys,” not from an explicit waiver.

Under Matter of Hensley v DeMun, Matter of Saber v Saccone, and Matter of Clark v Clark, a valid waiver requires a searching inquiry. The opinion reflects none of the required safeguards—no clear colloquy establishing that the mother understood the disadvantages of self-representation and nevertheless intentionally chose it.

(b) Forfeiture was implicitly relied on but not justified

The Third Department read the record as suggesting Family Court effectively found forfeiture (i.e., “you will not be assigned new counsel” and “proceeding to trial whether she did retain counsel or not”). But forfeiture demands an “extreme, last-resort” finding of “egregious conduct” (People v Shanks), and the appellate court held: the record did not “clearly reflect” conduct sufficient to justify forfeiture (Matter of Sa'Nai F.B.M.A. [Chaniece T.]).

Importantly, the opinion distinguishes difficult administration (a rural county, short assigned-counsel list) from the legal standard: logistical scarcity is not a substitute for the findings required to terminate a statutory right.

(c) Structural remedy: reversal regardless of the merits

Applying DiBella v DiBella and Matter of Renee S. v Heather U., the Court reiterated that denial of the statutory right to counsel is reversible error “without regard to the merits.” Thus, even if the grandmother might ultimately prove entitlement to visitation, the process that produced this order was invalid.

(d) The hearing posture mattered: the mother presented no proof after being forced pro se

The procedural harm was concrete. The mother was told she had to proceed immediately; when she repeatedly stated she did not know how to proceed, the court warned it would grant the petition if she did not go forward. She then presented no proof, and the temporary order became final. This sequence underscored why counsel is not a formality in article 6 litigation: it directly affects the ability to present evidence and contest proof.

(e) Remittal and notice to the father

The Court remitted for further proceedings and, in a footnote, reminded Family Court that the father must be given notice upon remittal. This signals attention to the integrity of the party structure in article 6 proceedings, especially where custody circumstances have changed during the appeal.

3.3. Impact

  • Firm guardrails on “no more assigned counsel” reasoning: The decision rejects the notion that a court may deny counsel because the assigned-counsel list is exhausted. Resource constraints may require scheduling solutions, but not elimination of the statutory right absent waiver or valid forfeiture findings.
  • Higher evidentiary/record burden before declaring forfeiture: After this opinion, Family Courts in the Third Department should expect closer scrutiny of any implicit forfeiture determination. Courts must build a record of egregious conduct, consider lesser measures, and avoid using forfeiture as a case-management sanction.
  • Withdrawal motions require careful handling: By flagging the lack of inquiry into “good and sufficient cause” (via Matter of Richard TT. [Kara VV.]), the opinion encourages courts to test withdrawal requests, especially when withdrawal will foreseeably leave a party unrepresented at a critical stage.
  • Practical litigation effect in grandparent visitation cases: Grandparent visitation proceedings often turn on credibility and nuanced best-interests proof. This opinion reinforces that the respondent parent must have a meaningful chance to litigate with counsel unless the strict waiver/forfeiture standards are satisfied.

4. Complex Concepts Simplified

  • Assigned counsel (Family Ct Act § 262 [a]): A lawyer appointed and paid for (typically by the county) when a person has a legal right to counsel and cannot afford one.
  • Waiver of counsel: A person can give up the right to a lawyer, but only if the choice is explicit and made knowingly, intelligently, and voluntarily after the court explains the risks.
  • Searching inquiry: The judge’s on-the-record questioning to ensure a party truly understands what they lose by proceeding without a lawyer (rules of evidence, objections, examination of witnesses, etc.).
  • Forfeiture of counsel: Different from waiver. It is a court-imposed loss of counsel rights due to extreme misconduct (e.g., persistent threatening/abusive behavior with successive lawyers). It is a last-resort doctrine requiring a clear record.
  • Supervised visitation: Visitation that must occur in the presence of a supervisor (sometimes a person, sometimes in a public setting) as a protective measure.
  • Remittal: The appellate court sends the case back to Family Court to continue proceedings consistent with the appellate ruling.

5. Conclusion

Matter of Carlene R. v Heather A. reinforces a clear rule for Family Ct Act article 6 visitation litigation: a respondent cannot be forced to proceed without counsel unless there is a valid, on-the-record waiver after a searching inquiry, or a properly supported finding of egregious conduct justifying forfeiture. Administrative difficulty, attorney-list shortages, or frustration with attorney-client conflict do not replace these requirements.

The decision’s significance lies less in grandparent visitation doctrine and more in procedural fairness: when the right to counsel is denied, the resulting order cannot stand—regardless of what the merits might ultimately show.