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Dolson v. Mitts
Opinion Summary: In the Matter of Jeanne E. Dolson v. Lindey M. Mitts
Supreme Court, Appellate Division, Third Department, New York — Decision date: 2012-10-18. Panel: Mercure, J.P., Malone Jr., Garry and Egan Jr., JJ. Attorneys of record: Paul J. Connolly (for appellant); Christopher J. Obstarczyk (attorney for the child).
Factual and Procedural Background
The parties are former spouses who share joint legal custody of their child (born in 1999) pursuant to a custody order incorporated into their judgment of divorce, with the mother having primary physical custody. The mother commenced a proceeding under Family Court Act article 6 to modify the prior custody order, seeking permission to obtain a passport for the child after the father refused to sign the application or a form consenting to issuance of the passport. Family Court granted the petition without holding an evidentiary hearing and issued an order awarding the mother sole legal custody for the limited purpose of obtaining a passport for the child. The father appealed. Although a passport was issued and the child used it for a family vacation with the mother, the Appellate Division concluded the appeal was not moot because the parties' rights remain affected by the court's determination, and the panel reversed and remitted the matter to Family Court.
Legal Issues Presented
- Whether Family Court erred by granting the mother's petition and modifying custody (sole legal custody for the purpose of obtaining a passport) without providing the father with the assistance of counsel or affording an adjournment to obtain counsel.
- Whether the deprivation of a party's right to counsel in a custody proceeding requires reversal of the order regardless of the merits of that party's position.
- Whether the appeal was moot given that a passport had been issued and used for travel.
Arguments of the Parties
Appellant (Father)'s Arguments
- The father asserted that, if the mother retained the child's passport, she could take the child out of the country without his knowledge.
- He requested either that the mother return the passport to the federal government or relinquish it to a neutral third party.
- The father expressed confusion at the Family Court appearance and requested an attorney; he sought an adjournment to obtain counsel.
Respondent (Mother)'s Position
- The mother sought to retain the child's passport for future foreign travel and therefore sought the modification permitting her to obtain the passport.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 431 N.Y.S.2d 400, 409 N.E.2d 876 (1980) | Cited for the principle addressing mootness and whether an appeal remains justiciable when rights of parties continue to be affected. | The court relied on this authority to conclude that the appeal was not moot despite issuance and use of the passport because the parties' rights remain affected by the court's determination. |
| Matter of Awan v. Awan, 75 A.D.3d 597, 906 N.Y.S.2d 70 (2010) | Discussed generally in connection with the mootness analysis. | Used, along with Hearst, to support the conclusion that the appeal was not moot. |
| Matter of Wilson v. Bennett, 282 A.D.2d 933, 724 N.Y.S.2d 520 (2001) | Referenced for the right of a respondent in a custody proceeding to counsel and to seek an adjournment to consult counsel. | The court cited Wilson in describing the father's rights and in concluding that those rights were not honored when the court refused to adjourn after the father requested counsel. |
| Matter of Deon M. [Vernon B.], 68 A.D.3d 1740, 891 N.Y.S.2d 817 (2009) | Expresses the principle that deprivation of a party's fundamental right to counsel is a denial of due process and requires reversal without regard to the merits of the unrepresented party's position. | The court relied on this principle to determine that reversal was required because Family Court granted the petition without affording the father assistance of counsel. |
| Matter of Scala v. Tefft, 42 A.D.3d 689, 840 N.Y.S.2d 193 (2007) | Cited as authority supporting reversal and remittal when a party's right to counsel has been compromised in family court proceedings. | Referenced as support for the remedy chosen: reversing and remitting the matter to Family Court for further proceedings. |
| Matter of Williams v. Bentley, 26 A.D.3d 441, 809 N.Y.S.2d 205 (2006) | Cited similarly to Scala as precedent for reversal and remittal where counsel-related due process concerns exist. | Used to support the court's disposition to reverse and remit rather than to decide the custody/merits issue on the existing record. |
Court's Reasoning and Analysis
The Appellate Division's analysis proceeded from two factual and legal premises stated in the opinion: (1) the father is a respondent in a custody proceeding and therefore possessed the right to counsel, the right to request an adjournment to consult with counsel, and the right to assigned counsel if he qualified financially (the court referenced Family Ct. Act § 262[a][iii] and Wilson v. Bennett), and (2) Family Court, although it advised the father of those rights, refused to adjourn when the father expressed confusion and requested an attorney.
The court emphasized a controlling due process principle — as articulated in Matter of Deon M. — that the deprivation of a party's fundamental right to counsel constitutes a denial of due process and requires reversal without regard to the merits of the unrepresented party's position. Applying that principle to the present record, the panel concluded that Family Court's decision to grant the mother's petition without affording the father the assistance of counsel deprived him of that fundamental right.
Because the order below was entered without permitting the father to have counsel or an adjournment to obtain counsel, the Appellate Division determined that the proper remedy was reversal of the order and remittal to Family Court for further proceedings consistent with the court's decision, citing Matter of Scala v. Tefft and Matter of Williams v. Bentley as supportive authority for that remedy. The court also addressed (and rejected) any mootness argument by noting that issuance and use of the passport did not render the appeal moot because the rights of the parties remain affected by the court's determination (citing Hearst and Awan).
Holding and Implications
Holding: The Appellate Division reversed the Family Court's order and remitted the matter to Family Court for further proceedings. The court's disposition was stated as: ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court's decision.
Implications: The direct effect of the decision is to vacate the Family Court's modification awarding the mother sole legal custody for the purpose of obtaining a passport and to require further proceedings in Family Court in which the father must be given the opportunity to obtain counsel or to be represented. The opinion does not announce a new rule of law; it applies established due process principles and precedent requiring reversal when a party's fundamental right to counsel is not respected in custody proceedings. No broader implications beyond the remedial effect on these parties were discussed in the opinion.
Paul J. Connolly, Delmar, for appellant. Christopher J. Obstarczyk, Albany, attorney for the child.
Before: MERCURE, J.P., MALONE JR., GARRY and EGAN JR., JJ.
MERCURE, J.P.
Appeal from an order of the Family Court of Albany County (Duggan, J.), entered August 24, 2011, which granted petitioner's application, in a proceeding pursuant to Family Ct. Act article 6, to modify a prior order of custody.
Pursuant to a custody order that was incorporated into the parties' judgment of divorce, the parties share joint legal custody of their child (born in 1999), with petitioner (hereinafter the mother) having primary physical custody. The mother commenced this proceeding for modification of the prior order of custody, seeking an order allowing her to obtain a passport for the child after respondent (hereinafter the father) refused to sign an application or form consenting to the issuance of a passport for the child. Family Court granted the petition without an evidentiary hearing, and issued an order awarding the mother sole legal custody for the purpose of obtaining a passport for the child. The father appeals, and we now reverse.
Asserting that the mother may take the child out of the country without his knowledge, the father requests that the mother either return the passport to the federal government or relinquish it to a neutral third party; the mother seeks to retain the child's passport for future foreign travel. Thus, although the child was issued a passport and has since used it to take a family vacation with the mother, the rights of the parties will be affected by our determination and this appeal is not moot ( see Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 714, 431 N.Y.S.2d 400, 409 N.E.2d 876 [1980];see generally Matter of Awan v. Awan, 75 A.D.3d 597, 598, 906 N.Y.S.2d 70 [2010] ).
As Family Court acknowledged during the parties' appearance before it, the father—a respondent in a custody proceeding—has the right to counsel, the right to seek an adjournment to confer with counsel, and the right to assigned counsel if qualified financially ( seeFamily Ct. Act § 262[a] [iii]; Matter of Wilson v. Bennett, 282 A.D.2d 933, 934, 724 N.Y.S.2d 520 [2001] ). Although the court properly advised the father of these rights, it refused to adjourn the proceeding when the father expressed his confusion and requested an attorney. “The deprivation of a party's fundamental right to counsel is a denial of due process and requires reversal, without regard to the merits of the unrepresented party's position” (Matter of Deon M. [Vernon B.], 68 A.D.3d 1740, 1741, 891 N.Y.S.2d 817 [2009] [internal quotation marks and citation omitted]; see Wilson v. Bennett, 282 A.D.2d at 934, 724 N.Y.S.2d 520). Inasmuch as Family Court granted the petition without affording the father the assistance of counsel, we now reverse and remit ( see Matter of Scala v. Tefft, 42 A.D.3d 689, 691–692, 840 N.Y.S.2d 193 [2007];Matter of Williams v. Bentley, 26 A.D.3d 441, 442, 809 N.Y.S.2d 205 [2006] ).
ORDERED that the order is reversed, on the law, without costs, and matter remitted to the Family Court of Albany County for further proceedings not inconsistent with this Court's decision. MALONE JR., GARRY and EGAN JR., JJ., concur.
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