The Second Department, reversing Family Court, determined mother’s modification of custody petition should not have been denied without a hearing:
Here, the mother established her entitlement to a hearing on the basis of changed circumstances. Specifically, the mother made a sufficient evidentiary showing in support of her allegations that the father sexually abused the oldest child and that, as a result of the ensuing litigation, the mother’s relationship with the father had deteriorated to the point that they could no longer communicate, and the oldest child was no longer visiting with the father … . Moreover, the “narrow exception” to the general requirement that a hearing be held is inapplicable in this case … . The dismissal of the article 10 [alleging sexual abuse of the oldest child by father] proceeding pursuant to an adjournment in contemplation of dismissal was not a dismissal on the merits and it did not resolve the allegations of sexual abuse … . Indeed, no evidentiary hearing was held in the article 10 proceeding, and the Family Court never made any findings of fact in that proceeding regarding the allegations of sexual abuse. In sum, the court should not have dismissed the mother’s modification petition without a hearing … . Matter of Chess v Lichtman, 2017 NY Slip Op 00644, 2nd Dept 2-1-17
FAMILY LAW (MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)/CUSTODY (MOTHER’S PETITION FOR MODIFICATION OF CUSTODY SHOULD NOT HAVE BEEN DENIED WITHOUT A HEARING)