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Controverted Custody-Related Issues Cannot Be Decided Based Upon “In Chambers” Conferences, A Full Hearing Is Required

The Second Department determined a new trial on all custody issues was necessary because Supreme Court refused to allow testimony on certain controverted allegations (parental alienation and use of corporal punishment). Supreme Court erroneously relied upon extensive “in camera” discussions which, Supreme Court determined, had revealed the issues to be “sporadic and inconsequential.”  The Second Department noted that all controverted custody issues should be decided only after the issues are addressed in a hearing:

” ‘[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing’ … . Here, the Supreme Court, after holding ‘extensive’ in camera discussions with counsel on the issues of excessive corporal punishment and parental alienation, refused to allow testimony on these controverted issues, stating that they were ‘sporadic and inconsequential.’ Instead, the Supreme Court directed that only ‘positive’ aspects of the parties’ parenting be presented on the record. This was error, since the court cannot base a significant portion of its decision on off-the-record conferences …”. Minjin Lee v Jianchuang Xu, 2015 NY Slip Op 06784, 2nd Dept 9-16-15

 

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