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FATHER, WHO DID NOT SUBMIT A PETITION FOR CUSTODY, WAS PRECLUDED FROM PRESENTING EVIDENCE OF HIS FITNESS AS A PARENT IN THIS CUSTODY PROCEEDING BROUGHT BY MOTHER; FATHER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS; ALTHOUGH FATHER DID NOT OBJECT, THE APPELLATE COURT HAS INHERENT AUTHORITY TO CORRECT FUNDAMENTAL ERRORS (THIRD DEPT). ​

The Third Department, reversing Family Court, determined father was deprived of due process of law because he was not allowed to put in evidence of his fitness as a parent in this custody proceeding brought by mother. Father did not file a custody petition. For that reason Family Court refused to allow father to put in evidence. The Third Department noted father did not object at trial but exercised its inherent authority to correct fundamental errors:

An initial custody determination must be based upon the best interests of the child, taking into account all relevant factors, including “the parents’ past performance and relative fitness, their willingness to foster a positive relationship between the child and the other parent, as well as their ability to maintain a stable home environment and provide for the child’s overall well-being” … . By this standard, the court must assess the qualifications of both parents in determining what custody determination best serves the interests of the child. In its decision, Family Court expressly held that because the father did not also file a custody petition, it could “only take into consideration the testimony brought by the mother.” There were several instances during the trial where the court precluded testimony from the father and his witness because he did not file a petition. As a result, the father was prevented from addressing all of the relevant factors, including who should be the primary custodian and what he did to foster a relationship between the child and the mother. The father’s stepfather was precluded from testifying as to his observations of the father as a parent. The father was allowed to briefly testify as to his average day with the child at the conclusion of testimony … . …

We are mindful that the father did not raise any objections at trial to Family Court’s evidentiary limitations. We are also mindful that the father was able to briefly testify as to his interactions with the child. That said, this court has inherent authority to exercise its discretion and correct fundamental errors … . In our view, the court’s failure to allow the father a full and fair opportunity to present evidence, coupled with the court’s own limitations on its decision, constitutes a fundamental due process error requiring reversal of Family Court’s order … . Matter of Liska J. v Benjamin K., 2019 NY Slip Op 05347, Third Dept 7-3-19

 

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