Right to counsel

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Legislation, Custody Disputes - Parents

There is a right to counsel in private custody proceedings in the following situations:

 

- Petitioner (such as non-custodial parents or grandparents) in any proceeding dealing with visitation of minor children in foster care under Part 8 of Article 10. N.Y. Fam. Ct. Act § 262(a)(i).

 

- Respondent in any proceeding regarding custody of a minor child under Part 3 of Article 6. N.Y. Fam. Ct. Act § 262(a)(iii).

 

- A parent, foster parent or other person with physical or legal custody of the child in proceedings concerning dependent children in foster care, guardianship and custody of children not in foster care, or guardianship and custody of destitute or dependent children, under §§ 358-a, 384 and 384-b of the Social Services Law. N.Y. Fam. Ct. Act § 262(a)(iv).

 

- The respondent in any proceeding for the approval of a surrender instrument concerning guardianship and custody of children not in foster care under § 384 of the Social Services Law. N.Y. Surr. Ct. Proc. Act § 407(1)(a)(ii).

 

- A non-custodial parent or grandparent served with notice of transfer of custody or care under § 384-a of the Social Services Law. N.Y. Fam. Ct. Act § 262(a)(iv).


- "[T]he parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding." N.Y. Fam. Ct. Act § 262(a)(v); N.Y. Surr. Ct. Proc. Act § 407(1)(a)(iv).


 See also N.Y. Jud. Law §35(1)(a)(4) (trial court may appoint counsel when court orders a hearing "in any adoption or custody proceeding if it determines that assignment of counsel in such cases is mandated by the constitution of this state or of the United States").

 

These rights to counsel extend to the appeal. N.Y. Fam. Ct. Act § 1120(a); see also N.Y. Surr. Ct. Proc. Act § 407(a)(v).


Where these proceedings take place in the New York Supreme Court, the parties have the same rights to counsel as identified above. N.Y. Jud. Law § 35(8) (providing for fees to be paid to appoint counsel when the supreme court exercises jurisdiction over family court matter "whereby, if such proceedings were pending in family court, such court would be required by [section 262] of the family court act to appoint counsel")

Appointment of Counsel: categorical Qualified: no