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FATHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED ABSENT A FULL HEARING (SECOND DEPT).

The Second Department, reversing Family Court, determined father’s petition for sole custody should not have been granted absent a full hearing:

By “Agreed Order in Suit Affecting the Parent-Child Relationship” (hereinafter the Texas custody order) dated October 4, 2016, which was so-ordered by the District Court, Harris County, Texas, the parties agreed to be appointed “Joint Managing Conservators” of their child, and the father was granted the exclusive right to designate the child’s primary residence within Westchester County, New York, or any contiguous county.

Less than two months later, on November 16, 2016, the father filed a petition in the Family Court, Westchester County, to modify the Texas custody order, inter alia, so as to award him sole custody of the child. The mother opposed the petition. Over 21 months, the parties made eight formal appearances in Family Court in connection with the father’s petition. The court never conducted an evidentiary hearing on the father’s petition, with the exception of taking the partial testimony of one nonparty witness. By order dated September 25, 2018, over the mother’s objection and request for an evidentiary hearing, the court, inter alia, granted the father’s petition to the extent of awarding him sole legal custody of the child. The mother appeals. We reverse.

Custody determinations should ” [g]enerally’ be made only after a full and plenary hearing and inquiry'”  … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . Here, the record does not demonstrate the absence of unresolved factual issues so as to render a custody hearing unnecessary … . Matter of Salvi v Salvi, 2019 NY Slip Op 09272, Second Dept 12-24-19

 

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