EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT.
The Fourth Department determined father’s petition to modify custody should not have been denied without a hearing. The evidence that mother had been arrested for a drug offense, in addition to allegations of corporal punishment by mother’s boyfriend, were enough to warrant a hearing:
We … agree with the father that he made a sufficient evidentiary showing of a change in circumstances to require a hearing with respect to certain remaining allegations in the amended petition. It was undisputed that the mother was facing prosecution for criminal possession of a controlled substance in Georgia. Although the mother submitted a negative drug test in support of her motion, the drug test was performed on a hair follicle sample that she submitted well after her arrest, and the assertions by the mother’s attorney regarding how far back such a test could detect drug use raises an issue to be resolved at an evidentiary hearing, not on a motion to dismiss. Considering the mother’s history of drug and alcohol addiction, as acknowledged by the parties in the parenting agreement, we conclude that the allegation that the mother was arrested and being prosecuted for criminal possession of a controlled substance is sufficient to warrant a hearing … , inasmuch as such conduct, including the mother’s possible unlawful use of a controlled substance, “is plainly relevant to her fitness as a parent” … . Matter of Farner v Farner, 2017 NY Slip Op 05545, 4th Dept 7-7-17
FAMILY LAW (CUSTODY, EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT)/CUSTODY (FAMILY LAW, EVIDENCE MOTHER HAD BEEN ARRESTED FOR A DRUG OFFENSE WAS ENOUGH TO WARRANT A HEARING ON FATHER’S PETITION FOR A CUSTODY MODIFICATION 4TH DEPT)