| Matter of Jeffrey JJ. v Stephanie KK. |
| 2011 NY Slip Op 07318 [88 AD3d 1083] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey JJ., Respondent, v Stephanie KK.,Appellant. |
—[*1] Eugene P. Grimmick, Troy, for appellant. Thomas C. Hall, Troy, attorney for the child.
Malone Jr., J. Appeal from an order of the Family Court of Rensselaer County (Taub,J.H.O.), entered September 29, 2009, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of adaughter (born in 2003). Pursuant to a prior order of custody, the parties' apparently shared legalcustody of the child; the mother had primary physical custody and the father had liberal visitationtime.[FN*] The father commenced this proceeding seeking primary physical custody of the child after theRensselaer County Department of Social Services commenced a Family Ct Act article 10 neglectproceeding against the mother and her husband (hereinafter the stepfather) after receiving areport that the stepfather had been intoxicated while driving with the mother, the [*2]subject child and another child in the vehicle. At the ensuingfact-finding hearing, the father presented evidence of, among other things, an existing order ofprotection that prohibited the stepfather from having any contact with the subject child until July30, 2010. The father then made an oral motion for Family Court to award him custody, which thecourt granted over the mother's objection, after it concluded that it was "impossible [for]. . . the child's primary residence to be with the mother[,] who is living with [thestepfather,] against whom there is an order of protection." The court further concluded that theissue of the child's best interests had "almost been determined by virtue of the fact that there is anorder of protection against" the stepfather. The court then awarded the father primary physicalcustody of the child with parenting time to the mother. The mother appeals.
The mother's main contention on appeal is that Family Court erred by granting the father'smotion without allowing her an opportunity to present any evidence. We agree. "In a proceedingpursuant to Family Ct Act article 6 seeking modification of a prior custody order, a full andcomprehensive hearing is required" (Matter of Middlemiss v Pratt, 86 AD3d 658, 659 [2011] [internalquotation marks and citations omitted]; see Matter of Stukes v Ryan, 289 AD2d 623, 624[2001]). At such hearing, due process requires that a parent be afforded "a full and fairopportunity to be heard" (Matter of Middlemiss v Pratt, 86 AD3d at 659 [internalquotation marks and citations omitted]; see Matter of Telsa Z. [Denise Z.], 84 AD3d 1599, 1600 [2011]).Here, Family Court violated the mother's due process rights when it granted the father's motionfor summary judgment on the petition without permitting the mother an opportunity to presentany evidence, call any witnesses, or even testify on her own behalf (see Matter of Middlemissv Pratt, 86 AD3d at 659). Notably, while the court believed that the order of protectionagainst the stepfather rendered it impossible for it to award the mother primary physical custody,on cross-examination the stepfather indicated that he was willing to move out of the mother'sresidence until that order expired. However, the mother was denied an opportunity to presentevidence regarding the feasibility of this plan when the court granted the father's motion.Accordingly, we must reverse and remit this matter for a full hearing on the merits. In light ofthis decision, we need not address the mother's additional contention.
Mercure, J.P., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the Family Court of RensselaerCounty for further proceedings not inconsistent with this Court's decision.
Footnote *: The prior order is not includedin the record on appeal, which omission ordinarily results in dismissal of the appeal (see Matter of Pratt v Anthony, 30AD3d 708 [2006]). However, since there is no dispute as to the terms of the prior order,which were put on the record in open court by Family Court, we will reach the merits of thisappeal (see Matter of Dann v Dann,51 AD3d 1345, 1346-1347 [2008]).