Evans v. Evans
| Decision Date | 27 February 1987 |
| Citation | 127 A.D.2d 998,513 N.Y.S.2d 63 |
| Parties | In the Matter of Martha EVANS, Appellant, v. Michael R. EVANS, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Richard Baumgarten, Buffalo, for appellant.
Richard G. Boehm, Hamburg, for respondent.
Before CALLAHAN, J.P., and DOERR, GREEN, PINE and DAVIS, JJ.
Family Court erred in granting respondent father's CPLR 4401 motion to dismiss the mother's petition at the close of her evidence in a trial in which she sought an initial determination of custody of her three children. A full and complete hearing is required to determine, in the best interests of the children, which parent should have custody (Obey v. Degling, 37 N.Y.2d 768, 769-770, 375 N.Y.S.2d 91, 337 N.E.2d 601; Matter of Blake v. Blake, 106 A.D.2d 916, 483 N.Y.S.2d 879; Allen v. Kriesel, 87 A.D.2d 992, 450 N.Y.S.2d 127). In addition, although the appointment of a law guardian is discretionary with respect to a Family Court Act article 6 custody petition (Family Ct. Act § 249), it was an abuse of discretion for the court to have initially exercised its discretion to appoint a law guardian and then, when that law guardian apparently reported a conflict of interest, to have proceeded to trial without appointing a new law guardian and without providing, on the record, a rationale for having done so. If, as the court was informed by petitioner's attorney at oral argument, a divorce action is pending, then the custody issue should be resolved in that action. If such an action is not pending, then the case is remitted to Family Court for a plenary hearing before a different judge. That judge should exercise his discretion regarding the appointment of a law guardian.
Order unanimously reversed on the law without costs.
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