Matthews v. Matthews

Summary

The appellate court reversed an order denying the father's motion to vacate a prior custody order entered upon his default. It held that the father was deprived of his statutory right to counsel under Family Court Act § 262 because his repeated requests for assigned counsel were ignored and there was no evidence that he waived that right. The matter was remitted for further proceedings, and the court also criticized the imposition of a $500 donation as a condition of avoiding dismissal.

Holdings

1. A default custody order must be vacated when the respondent was entitled to appointed counsel under Family Court Act § 262, repeatedly requested counsel, and there is no evidence that he waived that right.
2. A sanction requiring payment of $500 cannot be sustained where the respondent received no prior notice and no opportunity to present evidence concerning his ability to pay.

Questions Presented

1. Whether the father's motion to vacate a custody order entered upon his default should have been granted because he was deprived of his statutory right to appointed counsel under Family Court Act § 262.
2. Whether Family Court improperly conditioned dismissal of the motion on a $500 donation without prior notice or an opportunity for the father to present evidence concerning his ability to pay.

Disposition

reversed_and_remanded