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Defendant Contends Right to Adequate Hearing was Violated


This matter deals with a support proceeding under article 4 of the Family Court Act. The petitioner and respondent in the case is Dorothy Silvestris. The respondent and appellant in the case is Frank Silvestris. The case is being heard in the Supreme Court, Appellate Division, and First Department. The appeal in this case deals with a court order that directs the appellant to pay $30 a week for support of his eleven year old daughter.

Case Background

The proceeding was started in the Family Court of Greene County where the petitioner and the daughter live. The appellant, who is the father of the child lives in Bronx County. The matter was transferred to the Family Court of Bronx County pursuant to the provisions of the Uniform Support of Dependents Law.

A New York Family Lawyer said at the beginning of the case the appellant was asked by the Judge if he was prepared to proceed with the hearing or if he would prefer time to get a lawyer. The appellant chose to go on without counsel. An instant proceeding in the case was started and the appellant elected to conduct his case without a lawyer.

However, toward the end of the hearing the appellant asked for a postponement of the case so he could find a lawyer. The appellant had made an intelligent decision at the start of the hearing declining his right to a lawyer and for this reason could not interrupt or delay the hearing at a later stage to demand legal assistance. A Nassau County Family Lawyer said the right to counsel must be exercised in conformity with the orderly procedure of the court. When counsel is requested after a proceeding is started after a person has elected to go to trial without a lawyer the discretion is left up to the trial judge to determine whether or not such a request should be granted.

Case Discussion and Decision

In this case the trial judge elected to not grant the request and we find no error in this judgment. However, the issue in this case is the fact that the appellant was not advised to the fact that he had the right to cross examine and produce witnesses in his case. Not providing the appellant with this information deprived him of the right to an adequate hearing.

A Nassau County Child Support Lawyer said it appears that on the records provided to this court that the appellant was not provided with his statutory rights that are granted by section 433 which states that he has the right to be heard and to present witnesses in the case.

Section 413 of the Family Court Act deals with a father’s duty to provide support for his child and the amount to be paid will be a fair and reasonable sum according to his means. For this reason, the court cannot support the appellants request to have the amount of support that he pays modified.

The order that denied the appellant to the right of an attorney will be reversed. The case will be remitted to the Bronx Family Court for further proceedings regarding the amount of his support. Until then the father will be required to continue paying the amount of $30 per week temporarily.

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