Court Asks for Assessment of Father’s Income When Appointing Counsel


A father’s ability to pay all or part of his legal costs in a custody dispute over his two children is being challenged by a New York Supreme Court Judge. New York State recognizes the constitutional and statutory rights, held by the father, that justify the appointment of counsel during a custody dispute. However, New York State’s requirement does not require the appointment of private counsel. The Family Court Act of New York provides that a public attorney must be assigned to a litigant in any matter where they are unable to obtain an attorney.


The Monroe Supreme Court case of Carney v. Carney is, for the first time, challenging a father’s ability to obtain his own counsel. After the father claimed to be unable to obtain his own counsel, he consulted with the Monroe Public Defender’s Office. The father was screened and determined to be qualified for the appointment of counsel. Following the approval, the father asked the Supreme Court to appoint him an attorney. The court denied the request.


The Supreme Court’s apprehension to appoint the father an attorney comes after the previous submission of several court documents. In those submissions, the court became aware of the father’s professional credentials and job skills. The father possesses a master’s degree in mathematics and has a bachelor’s degree in micro-chemical engineering. Additionally, the father has held employment as a professor at numerous colleges in the past. In the father’s 2015 tax return, he reported earning only $10,000.


After the court’s rejection, the court addressed the question of whether they can hold a hearing on the father’s claim of indigence, and whether there are any circumstances in which the court could impute the income to the father that would negate his claims of indigence. The court acknowledged that there are two issues with the analysis. First, the court needs to determine what type of a hearing it would be, and second, who should challenge the father’s assertions of indigence.


The court concluded that they would hold a special hearing to determine the father’s ability to obtain his own counsel. The court appointed an attorney to present evidence of the father’s potential earnings. A Monroe County Public Defender will defend the father on his request for representation. After the hearing, the court will determine the father’s ability to obtain counsel, and then will continue with the custody proceeding. In drafting the decision, the court was sure to clarify that the holding in this case would only apply to family law cases and should not be read to apply to criminal cases.


Larry McCord & Associates, LLC realizes the importance of having adequate representation for your child custody proceeding. Navigating the complex legalities surrounding child custody matters can be difficult. The experienced New York family law attorneys at Larry McCord & Associates, LLC can guide you through your child custody dispute. Please contact Larry McCord and Associates, LLC at (631) 643-3084 to learn more about the firm's services and approach to divorce and family law.


 

 

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