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Rousseau v. Kraft

NEW YORK SUPREME COURT, APPELLATE DIVISION, FOURTH DEPARTMENT


April 30, 2010

IN THE MATTER OF CANDICE ROUSSEAU, RESPONDENT,
v.
LISA A. KRAFT, APPELLANT. (APPEAL NO. 1.)

Appeal from an order of the Family Court, Erie County (Marjorie C. Mix, J.H.O.), entered April 23, 2009 in a proceeding pursuant to Family Court Act article 6. The order granted the petition to modify an order of visitation.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 9, 2010

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for a hearing on the petition.

Memorandum

With respect to the order in appeal No. 1, we agree with respondent mother that Family Court erred in failing to conduct a hearing before granting the petition in which petitioner grandmother sought to modify an order setting forth a visitation schedule with the mother's children. " 'Determinations affecting custody and visitation should be made following a full evidentiary hearing, not on the basis of conflicting allegations' " (Matter of Kenneth M. v Monique M., 48 AD3d 1174, 1174-1175 [2008]). "Based upon the record before us, we are unable to determine whether the court 'possessed sufficient information to render an informed determination that was consistent with the child[ren]'s best interests' " (Matter of Hopkins v Gelia, 56 AD3d 1286 [2008]). We therefore reverse the order in appeal No. 1 and remit the matter to Family Court for a hearing on the petition.

With respect to the order in appeal No. 2, the mother has not raised any issues concerning that order in her brief on appeal, and we thus deem any such issues abandoned (see Matter of Sportello v Sportello [appeal No. 1], 70 AD3d 1446 [2010]; Ciesinski v Town of Aurora, 202 AD2d 984 [1994]).

Present---Smith, J.P., Carni, Lindley, Sconiers and Pine, JJ.

20100430

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