Right to counsel

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Legislation, Child Support Enforcement (Civil Contempt)

Any person subject to contempt for failure to comply with a child support order (or other order of the family court) is entitled to appointed counsel. N.Y. Fam. Ct. Act § 262(a)(vi). See also N.Y. Fam. Ct. Act § 453(b) (in child support enforcement proceedings, "The notice shall [] advise the respondent of the right to counsel, and the right to assigned counsel, if indigent.")  See In re Broome County Dep’t of Soc. Servs. v. Mitchell, 847 N.Y.S.2d 692, 693 (App. Div. 2007) (commitment of respondent to a jail term of six months was reversed because “he was not fully advised of his right to counsel upon his first appearance and was deprived of his right to counsel in later proceedings.”)

 

In other forms of civil contempt not handled in family court, the court must "inform the offender that he or she has the right to the assistance of counsel," and the statute states that the court has the discretion to appoint counsel if the offender is financially unable to do so. N.Y. Jud. Law § 770. While this sounds discretionary, one court has said that § Section 770 "require[s] the court to make a choice once indigency is found: either retain the power to punish the offender with a term of imprisonment by assigning counsel, or surrender that power by proceeding without assignment of counsel." Holmes v. Holmes, 454 N.Y.S.2d 22, 23 (App. Div. 1982) (remanding order of contempt so that court could make finding of indigency on issue of appointment of counsel); see also Clemens v. Clemens, 817 N.Y.S.2d 87, 88 (App. Div. 2006) (instructing the appointment of counsel under section 770 for a "defendant, appearing pro se, [who] asked for the assistance of assigned counsel on the ground that he was unemployed and had no income or assets").5

Appointment of Counsel: categorical Qualified: no