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FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER’S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT).

The First Department determined Family Court should not have ruled on mother's petition to modify custody without holding a hearing. In addition the First Department noted that Family Court improperly relied solely upon the child's wishes and unsworn documentary evidence:

Family Court improperly determined the mother's modification petition and the father's petitions for enforcement, parenting time modification, and sole custody by suspending all contact between the father and child without a hearing … . Modification of custody or visitation, even on a temporary basis, requires a hearing, except in cases of emergency … . We have held that a hearing may be “as abbreviated, in the court's broad discretion, as the particular allegations and known circumstances warrant” … . However, here, the court granted the drastic remedy of suspension of all contact between parent and child based solely upon its in camera interview with the child and its review of the motion papers and some portion of the court file, which included an unsworn and uncertified report by Family Court Mental Health Services (MHS) and unsworn letters from the child's treating therapist and from therapists who had seen the parties and child for family therapy … . Matter of Kenneth J. v Lesley B., 2018 NY Slip Op 06625, First Dept 10-4-18

FAMILY LAW (CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/CUSTODY (FAMILY LAW, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))/EVIDENCE (FAMILY LAW, CUSTODY, FAMILY COURT SHOULD NOT HAVE RULED ON MOTHER'S PETITION TO MODIFY CUSTODY WITHOUT HOLDING A HEARING, FAMILY COURT IMPROPERLY RELIED SOLELY UPON AN IN CAMERA INTERVIEW WITH THE CHILD AND UNSWORN DOCUMENTS FROM MENTAL HEALTH SERVICES AND THERAPISTS (FIRST DEPT))

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