WAS THERE A "KNOWING, INTELLIGENT, VOLUNTARY" WAIVER?

In certain instances, the New York State Family Court Act affords indigent litigants an entitlement to have counsel assigned to them by the court.*

If a party waives that right and opts to proceed pro se -- or on their own -- the court must ensure that the individual has made that decision "knowingly, intelligently, and voluntarily."

While no rigid test exists, appellate authority has required a showing that the individual "was aware of the dangers and disadvantages of proceeding without counsel."

In Jetter v. Jetter, the Kings County Family Court issued an order of protection against Mr. Jetter and directed that he "refrain from, inter alia, committing any criminal offense against his wife." On appeal, the Appellate Division, Second Department, reversed because the judge failed to advise Mr. Jetter of the "risks of self-representation."

Frankly, if you need to be told of that danger you may be best suited for the appointment of a guardian. No?

To download a copy of the Appellate Division's decision, please use this link: Jetter v. Jetter

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*S 262. Assignment of counsel for indigent persons. (a) Each of the persons described below in this subdivision has the right to the assistance of counsel. When such person first appears in court, the judge shall advise such person before proceeding that he has the right to be represented by counsel of his own choosing, of his right to have an adjournment to confer with counsel, and of his right to have counsel assigned by the court in any case where he is financially unable to obtain the same:
  (i) the respondent in any proceeding under article ten of this act and the petitioner in any proceeding under part eight of article ten of this act;
  (ii) the petitioner and the respondent in any proceeding under article eight of this act;
  (iii) the respondent in any proceeding under part three of article six of this act;
  (iv) the parent, foster parent, or other person having physical or legal custody of the child in any proceeding under section three hundred fifty-eight-a, three hundred eighty-four, three hundred eighty-four-b, or three hundred ninety-two of the social services law, and a non-custodial parent or grandparent served with notice pursuant to paragraph (e) of subdivision two of section three hundred eighty-four-a of the social services law;
  (v) the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding before the court in which the court has jurisdiction to determine such custody;
  (vi) any person in any proceeding before the court in which an order or other determination is being sought to hold such person in contempt of the court or in willful violation of a previous order of the court, except for a contempt which may be punished summarily under section seven hundred fifty-five of the judiciary law;
  (vii) the parent of a child in any adoption proceeding who opposes the adoption of such child.
  (viii) the respondent in any proceeding under article five of this act in relation to the establishment of paternity.
  (b) Assignment of counsel in other cases. In addition to the cases listed in subdivision (a) of this section, a judge may assign counsel to represent any adult in a proceeding under this act if he determines that such assignment of counsel is mandated by the constitution of the state of New York or of the United States, and includes such determination in the order assigning counsel;
  (c) Implementation. Any order for the assignment of counsel issued under this part shall be implemented as provided in article eighteen-B of the county law.