Award of Sole Custody to Mother Without a Hearing Reversed—Reliance on Expert Recommendations Not Sufficient

In reversing the Family Court’s award of sole custody to the mother without a hearing, the Second Department wrote:

Here, the Family Court did not possess adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest so as to render a hearing unnecessary. Indeed, the court was not involved when the parties agreed to the existing custody and parenting agreement, and only became involved in this proceeding after the prior Family Court Judge in this matter retired. Furthermore, although the court had the recommendations of an expert before it, the recommendations of experts are but one factor to be considered …, and “are not determinative and do not usurp the judgment of the trial judge” …. Accordingly, the Family Court erred in denying the father’s petition and, inter alia, awarding sole physical custody to the mother without first holding an evidentiary hearing on the issue of physical custody and visitation so that it could make an independent determination as to the best interests of the children on the basis of the evidence presented at such a hearing ….  Matter of Schyberg v Peterson, 2013 NY Slip Op 02406, 2011-1113, 2nd Dept, 4-10-12