William O. v. Michele A.

Summary

The New York Supreme Court, Appellate Division, reversed a Family Court order that denied a father's custody application and conditioned future custody petitions on completion of sex-offender treatment without a fact-finding hearing. The court held that the father received less than meaningful assistance of counsel because counsel failed to object to the improper role of the attorney for the children or request a hearing on treatment and the children's best interests.

Holdings

1. The father was denied effective assistance of counsel because his counsel failed to object to Family Court's improper reliance on the attorney for the children and failed to request a fact-finding hearing concerning sex-offender treatment and the children's best interests.
2. Family Court improperly relied on the attorney for the children as both an investigative arm of the court and an advisor in reaching its custody and visitation determinations.
3. Family Court could not deny the father's custody application and continue or condition visitation based on the untreated-sex-offender determination without a fact-finding hearing and evidence addressing the alleged risk to the children.

Questions Presented

1. Whether the father received meaningful or effective assistance of counsel in the custody and visitation proceeding.
2. Whether Family Court could deny the father's custody application and condition future custody-modification petitions on sex-offender treatment without a fact-finding hearing and based on challenged information outside the record.
3. Whether the attorney for the children was improperly used as an investigative arm and advisor of the court.

Disposition

reversed_and_remanded