
    In the Matter of Tammy Moloney, Respondent, v James Moloney, Appellant.
    [798 NYS2d 455]
   In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Ayres, J.), dated March 26, 2004, which, inter alia, awarded custody of the parties’ children to the mother.

Ordered that the order is reversed, on the law, without costs or disbursements, and the petition is dismissed.

The Family Court improperly awarded custody of the children to the mother without considering the incarcerated father’s written request for legal representation, thereby impairing the father’s “right to the assistance of counsel” (Family Ct Act § 262 [a]; see Matter of Ella B., 30 NY2d 352, 356-357 [1972]). The deprivation of a party’s fundamental right to counsel in a custody or visitation proceeding requires reversal, without regard to the merits of the unrepresented party’s position (see Matter of Wilson v Bennett, 282 AD2d 933, 934 [2001]; Matter of Dominique L.B., 231 AD2d 948 [1996]; Matter of Patricia L. v Steven L., 119 AD2d 221 [1986]; Matter of Orneika J., 112 AD2d 78, 80 [1985]). As a result, the Family Court’s order must be reversed. .

Furthermore, under the circumstances of this case, the mother’s original petition for custody in the Family Court should have been dismissed, as both the matrimonial and custody issues are currently being litigated in the Supreme Court (see Ramirez v Ramirez, 171 AD2d 784 [1991]; Matter of Shirley M. v William M., 152 Misc 2d 144 [1991]). H. Miller, J.P., Schmidt, Adams and Goldstein, JJ., concur.  