November 3, 2017
Jennifer Arditi, Maspeth, NY (of counsel), for appellant.
Melissa E. Bonaldes, Brooklyn, NY, for respondent.
P. Simmons, Brooklyn, NY (Lee Tarr and Barbara H. Dildine of
counsel), attorney for the child.
WILLIAM F. MASTRO, J.P. L. PRISCILLA HALL SANDRA L. SGROI
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
by the father from an order of the Family Court, Kings County
(Denise M. Valme-Lundy, Ct. Atty. Ref.), dated June 16, 2016.
The order, without a hearing, in effect, denied the
father's petition for increased visitation and
indefinitely suspended his visitation with the subject child.
that the order is reversed, on the law, without costs or
disbursements, and the matter is remitted to the Family
Court, Kings County, for a hearing on the father's
petition and a new determination thereafter; and it is
further, ORDERED that pending the hearing and new
determination, the father's visitation with the subject
child shall remain suspended.
parties, who were never married, are the parents of a child
born in 2004. In November 2013, the Family Court awarded the
mother sole custody of the child and awarded the father
visitation. In September 2014, the father filed a petition
seeking increased visitation with the child. The court
assigned counsel to represent the mother, re-appointed an
attorney for the father and an attorney for the child, and
adjourned the matter for a conference. Thereafter, based on
statements that the father made during a court appearance,
the court referred the father, with his consent, for a mental
health evaluation and, by order dated August 28, 2015,
temporarily suspended visitation pending the results of the
evaluation. Following the evaluation of the father, the court
permitted telephone contact between the father and the child,
but the child eventually refused to have any contact with the
father and the court again temporarily suspended all
visitation and adjourned the matter for a conference.
Thereafter, the court adjourned the matter for receipt of
results of an observation and evaluation of the child and the
father, and if that had not occurred, for a conference. At
the subsequently scheduled conference, the court indicated
that it required more information and suggested that the
father's attorney subpoena the father's psychiatrist
to testify. The parties also discussed with the court the
issue of whether another forensic evaluation should be
ordered. The court initially indicated that it would not
order another forensic evaluation, then changed its position
and agreed to order an evaluation conducted by a
psychologist, and thereafter changed its position again and
indicated that it was entering a final order suspending the
father's visitation with the child. The court indicated
that visits would be suspended pending a future modification
petition by the father demonstrating the father's
substantial participation in mental health treatment. The
father's counsel twice attempted to make a record in
response to the court's ruling, but was interrupted,
first by the court and then again when the electronic
recording of the proceeding was abruptly ended. Thereafter,
by order dated June 16, 2016, the court, without a hearing,
in effect, denied, the father's petition for increased
visitation and indefinitely suspended his visitation with the
where a facially sufficient petition has been filed,
modification of a Family Ct Act article 6 custody and
visitation order requires a full and comprehensive hearing at
which a parent is to be afforded a full and fair opportunity
to be heard (see Matter of Buck v Buck, 154 A.D.3d
1134; Matter of Schroll v Wright, 135 A.D.3d 1028;
Matter of Jeffrey JJ. v Stephanie KK., 88 A.D.3d
1083, 1084). A decision regarding child custody and
visitation should be based on admissible evidence (see
S.L. v J.R., 27 N.Y.3d 558, 564; Gentile v
Gentile, 149 A.D.3d 916, 918; Matter of Chaya S. v
Frederick Herbert L., 266 A.D.2d 219). Here, the Family
Court relied on information provided at the court
conferences, and the hearsay statements and conclusions of
mental health providers whose opinions and credibility were
untested by either party (see S.L. v J.R., 27 N.Y.3d
at 564; Gentile v Gentile, 149 A.D.3d at 918).
the circumstances of this case, the Family Court erred when
it, without a hearing, in effect, denied the father's
petition for increased visitation and indefinitely suspended
his visitation with the child (see S.L. v J.R.,
27NY3d at 564; Gentile v Gentile, 149 A.D.3d at 918;
Matter of McCullough v Harris, 119 A.D.3d
992, 993; Matter of Jeffrey JJ. v Stephanie KK., 88
A.D.3d at 1084; Matter of Middlemiss v Pratt, 86
A.D.3d 658, 659).
Accordingly, we remit the matter to the Family Court, Kings
County, for a hearing on the father's petition ...