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RE: A MOTION FOR TEMPORARY CUSTODY, IF ALLEGATIONS IN THE AFFIDAVITS ARE CONTROVERTED, A HEARING MUST BE HELD; TO BASE A TEMPORARY-CUSTODY RULING ON CONTROVERTED ALLEGATIONS IS AN ERROR OF LAW (SECOND DEPT).

The Second Department, reversing Supreme Court, determined controverted allegations in the affidavits required a hearing on the motion for temporary residential custody of the child:

… [W]hile temporary custody may generally “be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing” … .

… [T]he record demonstrates disputed factual issues so as to require a hearing on the plaintiff’s motion, in effect, for temporary primary residential custody of the child … . Chukwuemeka v Chukuemeka, 2022 NY Slip Op 04287, Second Dept 7-6-22

Practice Point: A motion for temporary custody may be decided on the papers if the allegations are not controverted. If allegations are controverted, it is an error of law to determine the issue without a hearing.

 

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