Opinion
10-09-2015
In the Matter of Anna H. MORGAN, Petitioner–Respondent, v. James W. PETERSON, Jr., Respondent–Appellant. In the Matter of James W. Peterson, Jr., Petitioner–Appellant, v. Anna H. Morgan, Respondent–Respondent.
Mary R. Humphrey, New Hartford, for Respondent–Appellant and Petitioner–Appellant. Paul A. Norton, Clinton, for Petitioner–Respondent and Respondent–Respondent. Paul Skavina, Attorney for the Child, Rome.
Mary R. Humphrey, New Hartford, for Respondent–Appellant and Petitioner–Appellant.
Paul A. Norton, Clinton, for Petitioner–Respondent and Respondent–Respondent.
Paul Skavina, Attorney for the Child, Rome.
Opinion
MEMORANDUM:
On appeal from an order of custody and visitation entered following a hearing pursuant to Family Court Act article 6, respondent-petitioner father contends that Family Court erred in vacating a prior order of custody and visitation entered upon the consent of the parties and in conducting a de novo hearing. We reject that contention. It is well established that a court retains inherent authority to vacate its own order in the interest of justice, even when entered on consent (see Matter of Chomik v. Sypniak, 70 A.D.3d 1336, 1336–1337, 894 N.Y.S.2d 268 ). “ Indeed, the court's power to [vacate an order in the interest of justice] is inherent and ‘does not depend upon any statute’ ” (Ruben v. American & Foreign Ins. Co., 185 A.D.2d 63, 67, 592 N.Y.S.2d 167 ; see Matter of Delfin A., 123 A.D.2d 318, 320, 506 N.Y.S.2d 215 ). Here, petitioner-respondent mother had the right to the assistance of counsel in this custody proceeding (see § 262[a][v]; Matter of Kristin R.H. v. Robert E.H., 48 A.D.3d 1278, 1279, 851 N.Y.S.2d 788 ), and the conceded failure on the part of the court to advise her of that right was a sufficient basis for vacating the resulting order in the interest of justice (see generally Delfin A., 123 A.D.2d at 319–320, 506 N.Y.S.2d 215 ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
SMITH, J.P., CENTRA, VALENTINO, WHALEN, and DeJOSEPH, JJ., concur.