DECISION & ORDER AFTER ORAL MOTION TO BE RELIEVED AS COUNSEL The parties have one child-in-common. On May 5, 2022, the mother, J.L. filed a violation petition against the father, K.B. See Petition for Enforcement/Violation of an Order of Support (J.L., 05/02/2022), Nassau County Family Court Docket Number F-04320-12/22E. J.L. sought to enforce the terms of the parties’ child support order. See Order of Support by Default (Miller, S.M., 10/20/2015), Nassau County Family Court Docket Number F-04320-12/15A. J.L. sought a willful finding with a disposition of, inter alia, a term of incarceration. See N.Y. FAM. CT. ACT §454 et al. (McKinney’s 2022) (where respondent found willful, court may refer matter to judge with recommendation that respondent be incarcerated for period up to six months). Given that K.B.’s loss of liberty was at stake, the Court allocuted him in regards to his finances, and determined him to be financially unable to afford counsel. The Court assigned The Legal Aid Society to represent him. Despite attempts to settle the case, a resolution could not be reached. The matter was scheduled for trial on July 26, 2022. J.L. was represented by retained counsel, Alexander E. Sklavos, Esq. (hereinafter “Mr. Sklavos”). K.B. was represented by assigned counsel, The Legal Aid Society by S.B., Esq. After J.L. rested her case, S.B. made a motion to dismiss. The Court granted S.B.’s motion and dismissed J.L.’s violation petition without prejudice.1 On July 28, 2022, J.L. refiled her violation petition. See Petition for Enforcement/Violation of an Order of Support (J.L., 07/26/2022), Nassau County Family Court Docket Number F-04320- 12/22F. On August 26, 2022, the Court heard the matter. Again, J.L. sought a willful finding. The Court reassigned The Legal Aid Society to represent K.B. S.B. appeared and made a motion, asking that The Legal Aid Society be relieved from representing K.B. S.B. was visibly shaken when she made her application. She informed the Court, in sum and substance, that after leaving the courtroom in July, K.B.’s demeanor towards her was abusive.2 She stated that his actions made her feel unsafe and a court officer had to escort her out of the courthouse and to her car.3 S.B. explained that her colleagues were aware of what transpired after K.B.’s July trial and they were concerned about their own safety should they be assigned to the case. The Court granted S.B.’s motion, assigned 18B counsel to represent K.B., and cautioned K.B. against acting inappropriately with his new attorney. The Court hereinafter memorializes its decision: Due Process is a cornerstone of our system of justice codified within the United States Constitution as part of the Fourteenth Amendment, Section 14 as well as the New York State Constitution as part of Article I, Section 6.5 See U.S. CONST. AMEND. XIV, §1; see also N.Y. CONST. ART. I, §6. New York’s Legislature found that due process requires assignment of counsel in certain Family Court actions. See N.Y. Fam. Ct. Act §261 (McKinney’s 2022) (assignment of counsel legislative findings and purposes). To that end, an indigent respondent in an enforcement action, in which a willful contempt finding is sought, has a statutory right to a court appointed attorney. See also N.Y. Fam. Ct. Act §262 (McKinney’s 2022) (family court assignment of counsel parameters). Notwithstanding, the right to assigned counsel is not an entitlement to counsel of one’s own choosing. See People v. Zomora, 191 A.D.3d 899, 900 (2d Dep’t 2021); see also Matter of J., 176 A.D.3d 938, 940 (2d Dep’t 2019); People v. Fulgencio, 168 A.D.3d 1094, 1094 (2d Dep’t 2019); Matter of Daniel K.L., 138 A.D.3d 743, 745 (2d Dep’t 2016); Tarnai v. Buchbinder, 132 A.D.3d 884, 886 (2d Dep’t 2015). In this willfulness action, K.B. has a right to assigned counsel. He does not, however, have a right to be disrespectful, rude, or brutish towards his attorney, or to make his attorney feel unsafe or uneasy. In light of S.B.’s forthright credible testimony, the Court finds that K.B.’s unjustified aggression towards S.B. caused a breakdown in communication between them, impacting their ability to maintain a meaningful attorney/client relationship. Accordingly, it is necessary and appropriate to relieve The Legal Aid Society in this action and any future child support proceedings in the Nassau County Family Court. The Court’s granting of S.B.’s motion does not extinguish K.B.’s right to counsel, see Rosado v. Badillo, 151 A.D.3d 978, 978 (2d Dep’t 2017); see also Rovira v. Roth, 140 A.D.3d 1173, 1174 (2d Dep’t 2016), and a new attorney shall be assigned to represent him. See N.Y. COUNTY LAW §722-b (McKinney’s 2022). Should K.B. act belligerently towards such substituted counsel, he will likely be unable to show good cause for assignment of another attorney were his substituted counsel to make a motion to be relieved. See Matter of J., 176 A.D.3d 938, 940 (“An indigent party is entitled to new assigned counsel only upon a showing of good cause for substitution.”); People v. Fulgencio, 168 A.D.3d at 1095 (whether to assign substituted counsel lies within sound discretion of judge); Matter of Daniel K.L., 138 A.D.3d at 745. ADJUDGED that in light of S.B.’s candid credible testimony about K.B.’s atrocious conduct directed at her, which caused her to feel unsafe, the Court finds that any breakdown in communication between them was the product of K.B.’s unwarranted hostility towards her; and it is further, ADJUDGED that it is necessary and appropriate to relieve The Legal Aid Society from representing K.B. in this action and any future child support proceedings in the Nassau County Family Court; and it is further, ADJUDGED that the Court’s granting of S.B.’s motion does not extinguish K.B.’s right to counsel, and a new attorney shall be assigned to represent him pursuant to New York State County Law Article 18-B; and it is therefore, ORDERED that the Legal Aid Society is hereby relieved from representing K.B. in this action and any future child support proceedings in the Nassau County Family Court; and it is further, ORDERED that substituted counsel shall be assigned to represent K.B. pursuant to New York State County Law Article 18-B. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATE-ISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. IF YOU WERE NOT IN COURT FOR THE HEARING, ANY CHALLENGE OR OBJECTION TO THIS ORDER MAY BE LIMITED TO THE FILING OF A MOTION TO VACATE THE ORDER. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: August 26, 2022
