Lionel E. v. Shaquana R.B.
Matter of Lionel E. v Shaquana R.
B.
2010
NY Slip Op 03785
Decided
on May 4, 2010
Appellate
Division, First Department
Published
by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This
opinion is uncorrected and subject to revision before publication in the
Official Reports.
Decided
on May 4, 2010
Andrias, J.P., Friedman, Catterson, McGuire, RomÁn, JJ.
2705
[*1]In
re Lionel E., Petitioner-Respondent,
v
Shaquana R. B., Respondent-Appellant.
George E. Reed, Jr.,
Ahmed
& Yau, LLP,
respondent.
Order,
Family Court, New York County (Elizabeth Barnett, Referee), entered on or about
March 10, 2009, which, after a trial, awarded custody of the subject child to
petitioner, unanimously affirmed, without costs.
We
reject respondent's argument that the matter was effectively decided at an
inquest that should not have been conducted. Petitioner was awarded custody of
the child after an inquest, respondent's default on the original trial date was
vacated and a full trial was subsequently conducted six months later. While the
court could not have been oblivious to petitioner's physical and legal custody
of the child during this interim period, the court's final decision after the
full trial was grounded mainly in other properly considered circumstances,
including the parties' respective home environments, behavior toward each other
and the child, parenting skills with particular reference to the child's
special needs, care of the child over his lifetime, willingness and ability to
foster a relationship between the child and the other party, work schedules,
and schooling options (see Eschbach v Eschbach, 56 NY2d 167, 171, 172, 173 [1982]). There is no
indication in the record that the court's final decision significantly relied
on petitioner's testimony at the inquest, or was based in significant part on
credibility determinations drawn from the circumstances of respondent's
default.
The
court did not deprive respondent of her right to counsel by permitting her to
represent herself at trial. Before permitting respondent to proceed
pro se, the court repeatedly asked her if she was certain she wanted to do so,
and advised her of her right to either assigned counsel or counsel of her own
choosing. In addition, the court advised respondent that she would be
responsible for presenting her case, and that the court would not conduct the
examination of witnesses for her, and respondent indicated she understood. We
are satisfied that respondent made the decision to represent herself knowingly,
intelligently, and voluntarily (see Matter of Hassig
v Hassig, 34 AD3d 1089 [2006]).
We
also reject respondent's argument that the court erred by not appointing a law
guardian. Such an appointment was not necessary to the resolution of the
custody issue where the court had an extremely detailed forensic report as well
as home studies performed by a social worker (see Dana-Sitzer
v Sitzer, 48 AD3d 354 [2008]; compare Matter of Amato
v Amato, 51 AD3d 1123, 1124 [2008]). [*2]
We
have considered respondent's other arguments and find them unavailing.
THIS
CONSTITUTES THE DECISION AND ORDER
OF
THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED:
MAY 4, 2010
CLERK