Can I Get a Free Lawyer in Family Court? Assigned Counsel in Erie County, NY

Family Court Act §261 explains why the right exists: these cases can cost a parent their child or their liberty. §262(a) then lists who has it, and the judge must tell each of them at the first appearance:

• Both sides of a family offense case. The person asking for an order of protection and the person it is aimed at, in an Article 8 proceeding (§262(a)(ii)).
• A parent in a custody or visitation case. A parent seeking custody, or contesting a substantial infringement of their right to custody (§262(a)(v)). This covers most Article 6 custody and visitation petitions.
• The respondent in a paternity case under Article 5 (§262(a)(viii)).
• A parent accused of neglect or abuse in an Article 10 child protective case (§262(a)(i)), along with parents in related foster care and termination proceedings.
• Anyone facing contempt or a willful violation finding, including a parent accused of willfully failing to pay child support (§262(a)(vi)). A willful violation can lead to jail, which is why the right attaches here.
• A parent who opposes the adoption of their child (§262(a)(vii)).

Section 262(b) adds a catch-all: a judge may assign counsel to an adult in any other Family Court proceeding where the state or federal constitution requires it.

An ordinary child support case. If you are filing for support, or answering a support petition, §262 does not give you assigned counsel. The right only arrives if the case turns into a willful violation proceeding. You can still ask the court to make the other parent pay your lawyer: in Family Court support proceedings, Family Court Act §438(a) lets the court allow counsel fees at any stage of the case.

A divorce. Property, maintenance and the divorce itself are decided in Supreme Court, and there is no assigned counsel for those issues. There is one bridge. Under Judiciary Law §35(8), when Supreme Court decides a matter that Family Court could have heard, such as custody or a family offense, and the person would have had a right to counsel in Family Court, Supreme Court must also appoint counsel. For the rest of the divorce, the tool is a fee award: Domestic Relations Law §237 creates a rebuttable presumption that the less-monied spouse’s fees are paid by the other spouse, explained in our post on who pays attorney fees in a NY divorce.

The statute says you qualify if you are “financially unable” to hire a lawyer, and it does not set a number. The number comes from the statewide Standards for Determining Financial Eligibility for Assigned Counsel issued by the New York State Office of Indigent Legal Services in February 2021, which apply to Family Court as well as criminal cases. You are presumed eligible if any of these is true:

• Your net income (take-home pay) is at or below 250% of the federal poverty guidelines.
• You receive, or were recently found eligible for, need-based public assistance: Family Assistance, Safety Net, SNAP, SSI, Medicaid, or public housing assistance.
• You are incarcerated, detained, or confined to a mental health facility.
• You were found eligible for assigned counsel in another case within the past six months.

Using the 2026 federal poverty guidelines, 250% works out to:

• Household of 1: $39,900 a year
• Household of 2: $54,100
• Household of 3: $68,300
• Household of 4: $82,500

A presumption can only be overcome by compelling evidence that you can actually pay for a qualified lawyer. Child support you receive and public assistance are not counted as income at all.

The 250% figure only sets the presumption. Above it, the test is whether your available resources cover a qualified lawyer, the costs of the case, and reasonable living expenses for you and your dependents. The standards tell the court to weigh your debts and the real cost of hiring a private lawyer in your county for that type of case.

Three more rules matter:

• Your car is not counted if you need it for basic life activities, like getting to work or getting the kids to school.
• Your home is not counted unless it has significant value, substantial equity, and you could get at that equity fast enough to hire a lawyer promptly.
• Your spouse’s or parents’ money is not treated as yours unless that person says they intend to pay for your lawyer and you agree to it.

You also do not have to prove that private lawyers turned you down, and the county cannot make assignment conditional on partial payments.

In Erie County, parents and parties in Family Court are represented through the Assigned Counsel Program, which operates with the Bar Association of Erie County. The practical sequence:

• First appearance. At Erie County Family Court, One Niagara Plaza in Buffalo, the judge or support magistrate will tell you about your right to counsel. Say plainly that you want a lawyer and cannot afford one.
• Referral. The court refers you to the Assigned Counsel Program at 403 Main Street, Suite 215, Buffalo, (716) 856-8804. The program’s own instructions say to call 48 hours after you receive the referral.
• Financial interview. Program staff screen your finances. Under the state standards this happens in a confidential setting, not in open court, and anything you submit to the court is sealed.
• Assignment. A panel attorney is assigned to your case and contacts you. The standards call for counsel at the first appearance or immediately after you ask, whichever is earlier, so screening should not hold up your case.

Bring recent pay stubs and any benefits letter (SNAP, Medicaid, SSI). You cannot be denied for minor mistakes, or only because a document is missing after a good-faith effort to get it.

A denial has to be in writing and has to explain why. You can ask the screening program to reconsider, and you can ask the judge to review it.

Once you have been assigned a lawyer, eligibility can only be re-examined in the narrow way County Law §722-d allows, which starts with the assigned lawyer. And whatever the answer, you can hire a private attorney at any point in the case. If cost is the obstacle, ask about counsel fees from the other side under §438 (support) or §237 (divorce).

You are allowed to represent yourself. The appellate courts insist that the choice be a real one. In Matter of Kristin R.H. v Robert E.H., 48 AD3d 1278 (4th Dept 2008), a mother in a Chautauqua County custody case had assigned counsel, who moved to withdraw on the morning of the hearing. The mother consented, the court denied her request for an adjournment, and the hearing went forward with her alone. The father was awarded custody.

The Fourth Department, the appellate court that covers Erie County and the rest of Western New York, reversed. A parent has “the right to the assistance of counsel” in a custody proceeding under §262(a)(v), and a waiver must be knowing, voluntary and intelligent, supported by a “searching inquiry” from the judge. One question about whether she objected to her lawyer leaving was not enough. The case was sent back for a new hearing before a different judge.

The lesson for a parent: if you want a lawyer, say so on the record, and ask for time to get one before a hearing starts.

Assigned counsel are private attorneys appointed through the panel and paid by the county, with the same duties of loyalty and confidentiality as a lawyer you hire.

Your child may also have a lawyer. An Attorney for the Child represents the child, not either parent, and is appointed under Family Court Act §249. Having an AFC in the case does not replace your own right to counsel.

If you do not qualify, or you would rather choose your own lawyer, we represent parents in Erie and Niagara County Family Court and in Supreme Court divorces. Our Buffalo divorce attorneys can tell you at a first meeting whether your case is one where the court should be appointing counsel instead.