In the Matter of Michelle Perez v. Estevez
| Decision Date | 22 March 2011 |
| Citation | 2011 N.Y. Slip Op. 02399,82 A.D.3d 1106,919 N.Y.S.2d 349 |
| Parties | In the Matter of Michelle PEREZ, respondent,v.Andy F. ESTEVEZ, appellant. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HEREKent V. Moston, Hempstead, N.Y. (Jeremy L. Goldberg and David A. Bernstein of counsel), for appellant.Gail M. Berkowitz, Northport, N.Y., for respondent.Roberta Fox, Sea Cliff, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, as limited by his brief, from so much of an order of the Family Court, Nassau County (Eisman, J.), dated December 15, 2009, as, without a hearing, awarded the mother sole legal and residential custody of the subject child.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for an evidentiary hearing on the issue of custody and for a new determination on the petition thereafter; and it is further,
ORDERED that pending the hearing and new determination, the subject child shall remain in the sole custody of the mother, and the provisions of the order dated December 15, 2009, regarding telephone contact between the father and the subject child shall remain in effect.
“[A]s a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing” ( Matter of Khan v. Dolly, 6 A.D.3d 437, 439, 774 N.Y.S.2d 365; see Matter of Peek v. Peek, 79 A.D.3d 753, 913 N.Y.S.2d 281; Matter of Klang v. Klang, 235 A.D.2d 476, 652 N.Y.S.2d 312; see also Matter of Garcia v. Ramos, 79 A.D.3d 872, 912 N.Y.S.2d 660). “Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” ( Matter of Peek v. Peek, 79 A.D.3d at 754, 913 N.Y.S.2d 281 [internal citation omitted] ). However, “it is not necessary to conduct such a hearing where the court already possesses sufficient relevant information to render an informed determination in the child's best interest” ( Matter of Feldman v. Feldman, 79 A.D.3d 871, 871, 912 N.Y.S.2d 438; cf. Matter of Peek v. Peek, 79 A.D.3d 753, 913 N.Y.S.2d 281).
Under the circumstances of this case, the Family Court lacked sufficient information to render an informed determination as to...
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