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A DECISION TO RETURN TO THE REGULAR ACCESS SCHEDULE OF PARENTING TIME AFTER A PERIOD OF SUPERVISED PARENTAL VISITS MUST BE BASED UPON ADMISSIBLE EVIDENCE; WHERE FACTS REMAIN IN DISPUTE, A HEARING IS REQUIRED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined that a hearing should have been held before granting defendant’s motion to return to the regular access schedule of parenting time because some facts were still in dispute:

… Supreme Court should have conducted an evidentiary hearing prior to directing that the regular access schedule as set forth in the parties’ stipulation of settlement be implemented immediately. Although the court based its determination on information contained in the parties’ applications, reports from Kids in Common, and statements from counsel for the parties and the attorney for the child during multiple conferences, Kids in Common had not yet advised that the child was ready for a fully normalized access schedule, and a decision regarding child custody and/or parental access should be based on admissible evidence … . Where, as here, facts material to a determination of what parental access is in the best interests of the child remain in dispute, a hearing is required … . Stolzenberg v Stolzenberg, 2022 NY Slip Op 05554, Second Dept 10-5-22

Practice Point: At the time defendant made a motion to return to the regular access schedule of parenting time after a period of supervised visitation facts remained in dispute. The motion should not have been granted without first holding a hearing where only admissible evidence is considered.

 

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