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In re Sanchez

Supreme Court of New York, Second Department

March 19, 2014

In the Matter of Cecilia Maribel Pineda Sanchez, appellant,
v.
Jose Santos Hernandez Bonilla, respondent. Docket Nos. V-6587-13, V-6588-13

Bruno Joseph Bembi, Hempstead, N.Y., for appellant.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, JOHN M. LEVENTHAL, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the petitioner appeals from an order of the Family Court, Nassau County (Stack, J.H.O.), dated August 14, 2013, which, without a hearing, dismissed the custody petition.

ORDERED that the order is reversed, on the law, without costs or disbursements, the custody petition is reinstated, and the matter is remitted to the Family Court, Nassau County, for a hearing and new determination of the petition thereafter.

The Family Court erred in dismissing the petition in which the mother sought orders of custody for her two teenaged children. A natural parent has standing to seek legal custody of his or her child (see Domestic Relations Law § 70[a]; Family Ct Act § 511; Debra H. v Janice R., 14 N.Y.3d 576, cert denied ____ U.S. ____, 131 S.Ct. 908; Matter of Marcelina M.-G. v Israel S., 112 A.D.3d 100; T.V. v New York State Dept. of Health, 88 A.D.3d 290, 301). According to the petitioner, the children's father has abandoned the children and, due to their immigration status, they could be returned to El Salvador where they have been subjected to abuse by family members and threats by gang members. The petitioner has alleged that awarding her custody would be in the best interests of the children, since it would enable the children to apply for special immigrant juvenile status (see Matter of Maria G.G.U. v Pedro H.P., 114 A.D.3d 691; Matter of Marisol N.H., _____ A.D.3d _____, 2014 NY Slip Op 00664 [2d Dept 2014]; Matter of Maura A.R.-R. [Santos F.R.], 114 A.D.3d 687).

Accordingly, since the Family Court dismissed the subject petition without conducting a hearing or considering the best interests of the children, we remit the matter to the Family Court, Nassau County, for a hearing and a new determination of the custody petition thereafter (see Matter of Maria E.S.G. v Jose C.G.L., 114 A.D.3d 667; Matter of Francisco M.-G. v Marcelina M.-G., 100 A.D.3d 900; Matter of Ashley W. [Verdele F.], 85 A.D.3d 807, 809).

MASTRO, J.P., DILLON, LEVENTHAL and DUFFY, JJ., concur.


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