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THE USUAL PROHIBITIONS RE: VACATING ORDERS ISSUED OPON A PARTY’S DEFAULT DO NOT APPLY IN CHILD CUSTODY MATTERS; TO MODIFY CUSTODY, A FULL AND PLENARY HEARING IS NECESSARY; IF A PARTY DOES NOT APPEAR IN A MODIFICATION PROCEEDING, AN INQUEST SHOULD BE HELD TO CREATE A RECORD (SECOND DEPT).

The Second Department, reversing Family Court, noted that courts should be more willing to vacate orders issued upon a party’s default in child custody matters. Mother had defaulted and custody was modified awarding custody to father. Mother’s motion to vacate the modification order should have been granted:

Although the determination of whether to relieve a party of an order entered upon his or her default is a matter left to the sound discretion of the Family Court … , “the law favors resolution on the merits in child custody proceedings” … . “Thus, the ‘general rule with respect to opening defaults in civil actions is not to be rigorously applied to cases involving child custody'” … .

Moreover, modification of an existing order of custody and parental access may be made only “‘upon a showing that there has been a subsequent change [in] circumstances such that modification is required to protect the best interests of the child'” … . “‘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” … . Matter of Paez v Bambauer, 2024 NY Slip Op 04205, Second Dept 8-14-24

Practice Point: Child custody should not be modified without a full and plenary hearing, or an inquest (if a party fails to appear).

Practice Point: The rigorous rules re: vacating an order issued upon a party’s default are relaxed in child custody matters.

 

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