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MOTHER’S PETITION TO MODIFY THE PARENTAL ACCESS SCHEDULE SHOULD NOT HAVE BEEN RULED ON WITHOUT HOLDING A HEARING, CRITERIA EXPLAINED (SECOND DEPT).

The Second Department, reversing Family Court, determined the judge should not have ruled in this custody proceeding without holding a hearing. Mother had filed a petition seeking modification of the parental access schedule:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . This rule “furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … .

Although the Court of Appeals has “decline[d] . . . to fashion a ‘one size fits all’ rule mandating a hearing in every custody case statewide,” it has cautioned that a court “opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision” … . The Court of Appeals has, therefore, criticized the “undefined and imprecise ‘adequate relevant information’ standard” as entailing “an unacceptably-high risk” of resulting in custody determinations that neither “conform to the best interest of a child” nor “adequately protect” a parent’s “fundamental right . . . ‘to control the upbringing of a child'”… . Accordingly, “[w]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … .

Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of the father’s parental access … . Moreover, the Family Court, in making its determinations without a hearing, relied upon the hearsay statements and conclusions of the forensic evaluator, whose opinions and credibility were untested by the parties. Contrary to the contention of the mother and the attorneys for the children, “the court’s mere reliance upon ‘adequate relevant information,’ as opposed to admissible evidence, was erroneous” … . Matter of Corcoran v Liebowitz, 2020 NY Slip Op 08058, Second Dept 12-30-20

 

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DEFENDANT INSURER DID NOT ELIMINATE ALL QUESTIONS OF FACT ABOUT WHETHER PLAINTIFFS... MOTHER SHOULD HAVE BEEN ADVISED OF HER RIGHT TO COUNSEL IN THIS CUSTODY PROCEEDING...