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A MOTION TO MODIFY THE CUSTODY PROVISIONS IN A SETTLEMENT AGREEMENT, WHERE THERE ARE CONTESTED FACTS, SHOULD NOT BE GRANTED WITHOUT A FULL HEARING (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined the motion for a modification of custody allowing mother the relocate should not have have been granted without a hearing:

“Since a court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” … . “This allows the court to fulfill its duty to make an enlightened, objective and independent evaluation of the circumstances” … . “[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing” … .  Rizea v Rizea, 2023 NY Slip Op 03935, Second Dept 7-26-23

Practice Point: Any modification of custody, where there are contested facts, requires a full hearing.

 

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