Kadyorios v. Kirton

• Decision Date: 08 July 2015
• Docket Number: 2014-06392, (Docket Nos. V-1356-07, V-1357-07, V-5-08)
• Citation: 2015 N.Y. Slip Op. 05946,130 A.D.3d 732,13 N.Y.S.3d 249
• Parties: In the Matter of Shaine N. KADYORIOS, respondent, v. Tara KIRTON, appellant. (Proceeding Nos. 1 and 3) In the Matter of Tara Kirton, appellant, v. Shaine N. Kadyorios, respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 732

13 N.Y.S.3d 249

2015 N.Y. Slip Op. 05946

In the Matter of Shaine N. KADYORIOS, respondent

v.Tara KIRTON, appellant. (Proceeding Nos. 1 and 3)

In the Matter of Tara Kirton, appellant

v.Shaine N. Kadyorios, respondent. (Proceeding No. 2).

2014-06392, (Docket Nos. V-1356-07, V-1357-07, V-5-08)

Supreme Court, Appellate Division, Second Department, New York.

July 8, 2015.

David Laniado, Cedarhurst, N.Y., for appellant.

Richard L. Herzfeld, New York, N.Y., for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Saira Wang and Janet Neustaetter of counsel), attorney for the child.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

Opinion

Appeal from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated June 10, 2014. The order, without a hearing, granted the father's petition to modify a prior order of custody to the extent of awarding him sole custody of the subject child and directed that no party remove the child from the jurisdiction without a court order. By decision and order on motion dated November 3, 2014, this Court granted that branch of the mother's motion which was to stay enforcement of so much of the order dated June 10, 2014, as awarded the father sole custody of the subject child, pending hearing and determination of the appeal.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County (IDV Part), for a full evidentiary hearing to determine the custodial arrangement that is in the child's best interests, and a new determination thereafter; and it is further,

ORDERED that pending the hearing and new determination, sole custody of the child shall remain with the mother, with visitation to the father pursuant to an order of the Supreme Court dated March 19, 2015.

The parties, who were never married, are the parents of a child born in October 2006. On October 5, 2011, by consent order of custody, the mother was awarded sole custody of the child and the father was awarded visitation. In December 2013, the father, claiming that the mother was interfering with his relationship with the child, petitioned to modify the consent order so as to award the parties joint custody. On June 10, 2014, after the mother stated in open court that she would not comply with certain terms of a temporary visitation order, the Supreme Court, without the benefit of a full evidentiary hearing, awarded the father sole custody of the subject child and directed that no party remove the child from the jurisdiction without a court order. The mother appeals.

To modify a consent order awarding sole custody to a parent, “ ‘there must be a showing of a change of circumstances such that modification is required to protect the best interests of the child’ ” (Matter of Gilleo v. Williams, 71 A.D.3d 1023, 1023, 897 N.Y.S.2d 203, quoting Matter of Zeis v. Slater, 57 A.D.3d 793, 793, 870 N.Y.S.2d 387 ; see Sano v. Sano, 98 A.D.3d 659, 949 N.Y.S.2d 780 ). The paramount concern in any custody determination is the best interests of the child, under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of James M. v. Kevin M., 99 A.D.3d 911, 911–913, 952 N.Y.S.2d 257 ).

As a general rule, determinations regarding custody and visitation should be made after a full evidentiary hearing (see Matter of James M. v. Kevin M., 99 A.D.3d at 913, 952 N.Y.S.2d 257 ; Matter of Aquino v. Antongiorgi, 92 A.D.3d 780, 781, 938 N.Y.S.2d 460 ). However, a hearing may not be necessary in certain circumstances where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child's best interests (see Matter of James M. v. Kevin M., ...