By: Daily Record Staff//November 16, 2023
By: Daily Record Staff//November 16, 2023//
New York State Supreme Court, Appellate Division, Fourth Judicial Department
Nonappearance of party – Videoconference
Appealed from Family Court, Erie County
Background: The respondent mother appealed from an order entered upon her default that awarded the petitioner father sole custody of the subject child, with supervised visitation to the mother. She argues that the order was in error as she appeared for the virtual evidentiary hearing by telephone rather than by videoconference because she had not been clearly directed to appear visually and her attorney appeared at the hearing.
Ruling: The Appellate Division dismisse3d the appeal. The court held that record demonstrates that during a pretrial conference weeks in advance of the scheduled hearing, the court advised the mother that she needed to appear virtually via a Microsoft Teams link to avoid the prospect of default and the mother, after expressing discomfort with appearing visually, confirmed her understanding that she was required to appear via videoconference for the hearing. At the hearing she alleged technical difficulties with her phone. The court responded that it needed her to appear visually to assess her credibility. She was then given an opportunity to confer with her attorney. The attorney requested an adjournment as she was unable to resolve the technical difficulties. The request was denied and the attorney elected not to proceed without the mother’s presence.
Charles J. Greenberg, for the respondent-appellant; Caitlin M. Connelly for the petitioner-respondent; Russell E. Fox, of the Legal Aid Bureau of Buffalo, attorney for the child.