P. Simmons, Brooklyn, NY (Janet Neustaetter and Barbara H.
Dildine of counsel), for nonparty-appellant.
McKnight, Brooklyn, NY, for respondent.
WILLIAM F. MASTRO, J.P. REINALDO E. RIVERA SHERI S. ROMAN
SANDRA L. SGROI, JJ.
DECISION & ORDER
by the child from an order of the Supreme Court, Kings County
(IDV Part) (Esther M. Morgenstern, J.), dated August 23,
2016. The order, without a hearing, granted the father's
petition alleging that the mother had violated the terms of
an existing custody and visitation order by awarding him
custody of the child.
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 further proceedings
parties are the parents of the subject child born in 2007.
The parties never married. By order on consent dated February
3, 2012 (hereinafter the consent order), the mother was
awarded sole legal and physical custody of the child, with
visitation to the father. The father filed a violation
petition dated March 11, 2016, alleging that the mother had
violated the consent order by relocating with the child and
by denying him visitation. After three court appearances, the
matter was scheduled for a hearing on August 23, 2016. On
that date, the Supreme Court denied a request by the mother
to appear by telephone, and, without the father having made
an application for custody of the child or the benefit of an
evidentiary hearing, awarded the father custody of the child.
The court also issued a warrant for the mother's arrest.
The child appeals.
paramount concern in any custody or visitation determination
is the best interests of the child (see Matter of Pagan v
Gray, 148 A.D.3d 811; Matter of Oyefesco v
Sully, 148 A.D.3d 710). "In order to modify a
consent order granting sole custody to a parent, there must
be a showing of a change [in] circumstances such that
modification is required to protect the best interests of the
child'" (Matter of Odeh v Assad, 74 A.D.3d
1345, 1347, quoting Matter of Gilleo v Williams, 71
A.D.3d 1023, 1023). "Custody determinations should
generally be made only after a full and plenary hearing and
inquiry. This general rule furthers the substantial interest,
shared by the State, the [child], and the parents, in
ensuring that custody proceedings generate a just and
enduring result that, above all else, serves the best
interests of the child" (Matter of Fraser v
Fleary, 147 A.D.3d 937, 938; see S.L. v J.R.,
27 N.Y.3d 558, 563). Reversal or modification of an existing
custody order "should not be a weapon wielded as a means
of punishing a recalcitrant" or contemptuous parent
(Matter of Ahman v Naviwala, 306 A.D.2d 588, 591;
see Matter of Kadyorios v Kirton, 130 A.D.3d 732).
Moreover, where no party has moved for a change in custody, a
court may not modify an existing custody order in a
non-emergency situation absent notice to the parties, and
without affording the custodial parent an opportunity to
present evidence and to call and cross-examine witnesses
(see Matter of Hirtz v Hirtz, 108 A.D.3d 712,
714-715; Matter of Rodger W. v Samantha S., 95
A.D.3d 743, 743-744; Matter of Joseph A. v Jaimy B.,
81 A.D.3d 1219, 1220; Matter of Terry I. v Barbara
H., 69 A.D.3d 1146, 1149; Alix A. v Erika H.,
45 A.D.3d 394, 394; Matter of Fisk v Fisk, 274
A.D.2d 691, 692).
the Supreme Court improperly modified the consent order by
changing custody from the mother to the father without the
father having sought that relief in the petition, and without
any apparent consideration of the child's best interests
(see S.L. v J.R., 27 N.Y.3d at 563; Matter of
Odeh v Assad, 74 A.D.3d at 1347). The court's award
of custody to the father under the circumstances of this case
also was improper in light of the father's statements
during the proceedings that he did not have a steady place to
live with the child and that he did not wish to make an
application for custody. Accordingly, we reverse the order
and remit the matter to the Supreme Court, Kings County (IDV
Part), for further proceedings on the father's violation
petition. We ...