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MOTHER’S PETITION FOR SOLE CUSTODY SHOULD NOT HAVE BEEN GRANTED UPON FATHER’S FAILURE TO APPEAR; FATHER’S ATTORNEY EXPLAINED FATHER’S ABSENCE AND REQUESTED AN INQUEST; AN APPEAL FROM AN ORDER ENTERED UPON A PARTY’S DEFAULT BRINGS UP FOR REVIEW ONLY THE CONTESTED MATTERS BEFORE THE TRIAL COURT (SECOND DEPT).

The Second Department, reversing Family Court, determined mother’s petition for sole custody should not have been granted upon father’s failure to appear. Father’s attorney explained father’s absence and asked that the matter be set down for an inquest. The Second Department noted that, upon appeal from an order made upon a party’s default, only the contested matters before the trial court can be heard:

“A custody determination, whether made upon the default of a party or not, must always have a sound and substantial basis in the record” … . Generally, the court’s determination should be made only after “a full and plenary hearing and inquiry” … or, where a party failed to appear, after an inquest … .

Here, the Family Court granted the mother’s petition to modify the prior order, upon the father’s default, without receiving any testimony or other evidence, despite the fact that the father’s attorney proffered a reasonable explanation for the father’s absence and that the father did not have a history of missing court dates … . Under the circumstances, the court improvidently exercised its discretion in denying the application of the father’s attorney to set the matter down for an inquest … .  Matter of Otero v Walker, 2023 NY Slip Op 05607, Second Dept 11-8-23

Practice Point: Generally where a party defaults in a custody matter, an inquest should be held before any ruling.

Practice Point: Upon appeal from an order made upon a party’s default, only the contested matters before the trial court come up for review.

 

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