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FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD.

The First Department, reversing Family Court, determined mother’s petition for a modification of custody should not have been dismissed without a hearing and without interviewing the 13-year-old child:

… [P]etitioner submitted evidence of the younger child’s preference, his growing apprehension about staying with respondent [father], and respondent’s maltreatment of the child. She submitted evidence that she was addressing the mental health concerns that had led to her initial consent to relinquish custody to respondent and evidence that she had sought treatment for issues relating to a history of domestic violence and that she had obtained new living quarters for herself and the younger child. The child supported the petition and asked for an in camera hearing … .

Without meeting with the child or considering the sworn allegations of domestic abuse (see Domestic Relations Law § 240[1]), the court granted the motion to dismiss. This was error.

Petitioner presented sufficient evidence to warrant a plenary hearing to determine whether the totality of the circumstances warrants a modification of the custody order, including its limited visitation provisions and the grant of complete decision-making authority to respondent, and whether such a change is in the best interests of the child … . The child’s wishes, to be discerned from an interview, should be considered in making the determination … . Matter of Athena H.M. v Samuel M., 2016 NY Slip Op 06865, 1st Dept 10-20-16

FAMILY LAW (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)/CUSTODY (FAMILY COURT SHOULD NOT HAVE DISMISSED MOTHER’S PETITION FOR CUSTODY MODIFICATION WITHOUT HOLDING A HEARING AND INTERVIEWING THE CHILD)

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