SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
543
CAF 14-00328
PRESENT: SCUDDER, P.J., SMITH, SCONIERS, WHALEN, AND DEJOSEPH, JJ.
IN THE MATTER OF JONATHAN D. VANSKIVER,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
MALLORY J. CLANCY, RESPONDENT-APPELLANT.
CARA A. WALDMAN, FAIRPORT, FOR RESPONDENT-APPELLANT.
SAMANTHA PETERS SMITH, ATTORNEY FOR THE CHILD, CANISTEO.
Appeal from an order of the Family Court, Steuben County (Gerard
J. Alonzo, Jr., J.H.O.), entered January 29, 2014 in a proceeding
pursuant to Family Court Act article 6. The order granted petitioner
sole legal custody and primary physical placement of the parties’
child.
It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.
Memorandum: On appeal from an order modifying a prior custody
order by, inter alia, awarding sole legal custody and primary physical
placement of the parties’ child to petitioner father, respondent
mother contends that she was denied effective assistance of counsel.
“[W]e note at the outset that, ‘because the potential consequences are
so drastic, the Family Court Act affords protections equivalent to the
constitutional standard of effective assistance of counsel afforded
defendants in criminal proceedings’ ” (Matter of Brown v Gandy, 125
AD3d 1389, 1390). We nevertheless reject the mother’s contention
inasmuch as she did not “ ‘demonstrate the absence of strategy or
other legitimate explanations’ for counsel’s alleged shortcomings”
(People v Benevento, 91 NY2d 708, 712; see Matter of Reinhardt v
Hardison, 122 AD3d 1448, 1449).
Contrary to the mother’s further contention, Family Court did not
abuse its discretion in denying her attorney’s request for an
adjournment and in holding the hearing in her absence (see Matter of
O’Leary v Frangomihalos, 89 AD3d 948, 949; see generally Matter of
Steven B., 6 NY3d 888, 889). The mother was aware of the hearing
date, and her attorney’s “vague claim that [she] was unable to attend
the hearing due to [winter weather conditions] was unsupported by any
detailed explanation or evidence from the [mother]” (Matter of
-2- 543
CAF 14-00328
Braswell v Braswell, 80 AD3d 827, 829; see O’Leary, 89 AD3d at 949).
Entered: May 1, 2015 Frances E. Cafarell
Clerk of the Court