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COURT-APPROVED CUSTODY AND PARENTAL ACCESS STIPULATION SHOULD NOT HAVE BEEN MODIFIED WITHOUT A HEARING; UPON REMITTAL AN ATTORNEY FOR THE CHILD SHOULD BE APPOINTED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the court should not have modified a court-approved stipulation relating to custody and parental access without a hearing. And the Second Department ordered that an attorney for the child be appointed upon remittal:

“Modification of a court-approved stipulation setting forth terms of custody or [parental access] is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the best interests and welfare of the child” … . The best interests of the child are determined by a review of the totality of the circumstances  … . “Where . . . facts essential to the best interests analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required” … .

In view of the parties’ disputed factual allegations in this case, the Supreme Court improvidently exercised its discretion in granting that branch of the plaintiff’s motion which was to modify the stipulation of custody so as to award him final decision-making authority with respect to the child without a hearing to determine whether an award of final decision-making authority to the plaintiff was in the best interests of the child … . Furthermore, under the circumstances of this case, the interests of the child should be independently represented … . Walter v Walter, 2019 NY Slip Op 09056, Second Dept 12-18-19

 

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