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DISMISSAL WITHOUT A HEARING ON PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR.

The Third Department, reversing Family Court, determined the dismissal without a hearing of mother's petition for modification of the custody arrangement was error:

In her petition, the mother alleged, among other things, that the father was charged with reckless endangerment, vehicular assault and driving while intoxicated after he crashed a car in January 2015, thereby causing injury to himself and his three passengers. The mother also alleged that the father engaged in a course of conduct that alienated the children from her, that the children desired to spend more time with her and that her work schedule had become more flexible since completing her medical residency. If established after a hearing, these allegations could afford a basis for modifying the prior custodial arrangement and, thus, Family Court erred in dismissing the petition without first conducting a hearing … . Given that the mother's petition places both legal and physical custody in issue, we further note that if, after a hearing, the mother makes the requisite showing of a change in circumstances sufficient to warrant a best interests inquiry and Family Court determines that joint legal custody is not feasible, it is “'incumbent upon Family Court to determine a custodial arrangement based upon the best interests of the child[ren] despite the absence' of a petition definitively seeking sole custody” … . Matter of Engelhart v Bowman, 2016 NY Slip Op 04294, 3rd Dept 6-2-16

FAMILY LAW (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)/CUSTODY (DISMISSAL WITHOUT A HEARING OF PETITION TO MODIFY CUSTODY ARRANGEMENT WAS ERROR)

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