scheduled fact-finding hearing in New York

2022Matter of Cassandra M., 260 AD2d 961, 963 [3d Dept 1999] [holding that, where a party has not defaulted, “the proper course (is) . . . to require petitioner to present its proof, especially where petitioner was ready to proceed (as we would expect on the day of a scheduled fact- finding hearing) and respondents’ attorneys and the Law Guardian were present”]).2 Notably, at the hearing, counsel did not seek to be relieved as attorney for appellant, nor did counsel state that he was unable to diligently or competently represent appellant (see Rules of Professional Conduct [22 NYCRR 1200.0] rules

1999This is especially true where, as here, respondent! ] did appear by [his] assigned counsel who objected to petitioner’s default motion and who, given the opportunity, could have proceeded to a hearing and defended [her] absent client!]” (Matter of Cassandra M., 260 AD2d 961, 962-963 ; see, Matter of Baer, 125 Misc 2d 563, 569 ; Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1042, at 119).

2026Considering this and the father's history of nonappearance, we cannot say it was an improvident use of the court's discretion to deny his request to appear virtually for the scheduled fact-finding hearing and then, when he did not appear, find the father in default rather than adjourning the matter sua sponte ( see Matter of Jessica HH. v Sean HH. , 196 AD3d 750, 752 [3d Dept 2021]; Matter of Ariane I. v David I. , 82 AD3d 1547, 1548 [3d Dept 2011], lv denied 17 NY3d 703 [2011]; see also Matter of Hanrahand v Hanrahand , 222 AD3d at 754 ; Matter of Naomi KK. v Natasha LL. , 80 AD3d 834, 835 [3

2026Considering this and the father's history of nonappearance, we cannot say it was an improvident use of the court's discretion to deny his request to appear virtually for the scheduled fact-finding hearing and then, when he did not appear, find the father in default rather than adjourning the matter sua sponte ( see Matter of Jessica HH. v Sean HH. , 196 AD3d 750, 752 [3d Dept 2021]; Matter of Ariane I. v David I. , 82 AD3d 1547, 1548 [3d Dept 2011], lv denied 17 NY3d 703 [2011]; see also Matter of Hanrahand v Hanrahand , 222 AD3d at 754 ; Matter of Naomi KK. v Natasha LL. , 80 AD3d 834, 835 [3

2026Additionally, the court did not abuse its discretion when it terminated the father's virtual participation in the inquest after he called the attorney for the child a "b***h" as she attempted to set forth her position on the record ( see Matter of Smith v Bullock , 202 AD3d 697, 698 [2d Dept 2022]; Matter of Bartosz B. [Andrzej B.] , 187 AD3d 894, 896 [2d Dept 2020]; Matter of Nyree S. v Gregory C. , 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]; see also 22 NYCRR 205.4 [b]).

2026Considering this and the father's history of nonappearance, we cannot say it was an improvident use of the court's discretion to deny his request to appear virtually for the scheduled fact-finding hearing and then, when he did not appear, find the father in default rather than adjourning the matter sua sponte ( see Matter of Jessica HH. v Sean HH. , 196 AD3d 750, 752 [3d Dept 2021]; Matter of Ariane I. v David I. , 82 AD3d 1547, 1548 [3d Dept 2011], lv denied 17 NY3d 703 [2011]; see also Matter of Hanrahand v Hanrahand , 222 AD3d at 754 ; Matter of Naomi KK. v Natasha LL. , 80 AD3d 834, 835 [3

2026Additionally, the court did not abuse its discretion when it terminated the father's virtual participation in the inquest after he called the attorney for the child a "b***h" as she attempted to set forth her position on the record ( see Matter of Smith v Bullock , 202 AD3d 697, 698 [2d Dept 2022]; Matter of Bartosz B. [Andrzej B.] , 187 AD3d 894, 896 [2d Dept 2020]; Matter of Nyree S. v Gregory C. , 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]; see also 22 NYCRR 205.4 [b]).

2026Considering this and the father's history of nonappearance, we cannot say it was an improvident use of the court's discretion to deny his request to appear virtually for the scheduled fact-finding hearing and then, when he did not appear, find the father in default rather than adjourning the matter sua sponte ( see Matter of Jessica HH. v Sean HH. , 196 AD3d 750, 752 [3d Dept 2021]; Matter of Ariane I. v David I. , 82 AD3d 1547, 1548 [3d Dept 2011], lv denied 17 NY3d 703 [2011]; see also Matter of Hanrahand v Hanrahand , 222 AD3d at 754 ; Matter of Naomi KK. v Natasha LL. , 80 AD3d 834, 835 [3

2026Additionally, the court did not abuse its discretion when it terminated the father's virtual participation in the inquest after he called the attorney for the child a "b***h" as she attempted to set forth her position on the record ( see Matter of Smith v Bullock , 202 AD3d 697, 698 [2d Dept 2022]; Matter of Bartosz B. [Andrzej B.] , 187 AD3d 894, 896 [2d Dept 2020]; Matter of Nyree S. v Gregory C. , 99 AD3d 561, 562 [1st Dept 2012], lv denied 20 NY3d 854 [2012]; see also 22 NYCRR 205.4 [b]).

2020On the second day, her medical records show that respondent did not go to the hospital until approximately four hours after she was required to appear in court, and even then, was diagnosed with only mild symptoms ( see Matter of Monica Irene C. , 262 AD2d 69, 70 [1st Dept 1999]).

2009Indeed, petitioner offered no evidence at the scheduled fact-finding hearing to support its petition, and the record thus is devoid of any evidence that the father “is guilty of some fault” to support any such determination by the court (id.), or that petitioner engaged in the requisite diligent efforts to strengthen the relationship between the father and his daughter (see Matter of Kyle K., 49 AD3d 1333, 1335 [2008], lv denied 10 NY3d 715 [2008]; see also Social Services Law § 384-b [7] [f]).

2006To the extent that petitioner contends that this constitutes reversible error, “the case law makes clear that, although the appointment of a Law Guardian in a contested custody matter remains ‘the preferred practice’, . . . such appointment is discretionary, not mandatory” (Lips v Lips, 284 AD2d 716, 716 [2001], quoting Davis v Davis, 269 AD2d 82, 85 [2000]; see Matter of Cole v Reynolds, 8 AD3d 703, 705 [2004]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).

2006To the extent that petitioner contends that this constitutes reversible error, “the case law makes clear that, although the appointment of a Law Guardian in a contested custody matter remains ‘the preferred practice’, . . . such appointment is discretionary, not mandatory” (Lips v Lips, 284 AD2d 716, 716 [2001], quoting Davis v Davis, 269 AD2d 82, 85 [2000]; see Matter of Cole v Reynolds, 8 AD3d 703, 705 [2004]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).

2006To the extent that petitioner contends that this constitutes reversible error, “the case law makes clear that, although the appointment of a Law Guardian in a contested custody matter remains ‘the preferred practice’, . . . such appointment is discretionary, not mandatory” (Lips v Lips, 284 AD2d 716, 716 [2001], quoting Davis v Davis, 269 AD2d 82, 85 [2000]; see Matter of Cole v Reynolds, 8 AD3d 703, 705 [2004]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).

2006To the extent that petitioner contends that this constitutes reversible error, “the case law makes clear that, although the appointment of a Law Guardian in a contested custody matter remains ‘the preferred practice’, . . . such appointment is discretionary, not mandatory” (Lips v Lips, 284 AD2d 716, 716 [2001], quoting Davis v Davis, 269 AD2d 82, 85 [2000]; see Matter of Cole v Reynolds, 8 AD3d 703, 705 [2004]; Matter of Walker v Tallman, 256 AD2d 1021, 1022 [1998], lv denied 93 NY2d 804 [1999]).

1999This is especially true where, as here, respondent! ] did appear by [his] assigned counsel who objected to petitioner’s default motion and who, given the opportunity, could have proceeded to a hearing and defended [her] absent client!]” (Matter of Cassandra M., 260 AD2d 961, 962-963 ; see, Matter of Baer, 125 Misc 2d 563, 569 ; Besharov, Practice Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 1042, at 119).

1998This amendment to Family Court Act article 3 provides “that if a warrant has been issued due to a respondent’s failure to appear in court, the date of issuance of the warrant to the date respondent subsequently appears in court shall be excluded from the computation of the time within which the hearing must commence under section 340.1” (supra; see, Matter of E.F., 162 Misc 2d 597 ). 4 Family Court Act § 340.1 (7) reads as follows: “For purposes of this section, if a warrant for the respondent’s arrest has been issued pursuant to section 312.2 of this article due to the respondent’s failure to

1998Accordingly, we are constrained to find merit in respondent’s contention that Family Court committed reversible error (see, Family Ct Act § 741 [a]; see also, Matter of Tyronda K., 209 AD2d 816 ; Matter of Anthony SS., 197 AD2d 767 ; Matter of Guy II., 192 AD2d 770 ; Matter of Erik N., 185 AD2d 433 ; Matter of Damian C., 161 AD2d 1206 ; Matter of Ray shown R., 161 AD2d 1205 ).