| Matter of Kenneth M. v Monique M. |
| 2008 NY Slip Op 00907 [48 AD3d 1174] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Kenneth M., Respondent, v Monique M.,Appellant. |
—[*1] Sheila Sullivan Dickinson, Law Guardian, Buffalo, for Keionna M.
Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), enteredDecember 11, 2006. The order granted the petition and modified a prior order dated September27, 2005.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs and the matter is remitted to Family Court, Erie County, for a hearing on thepetition.
Memorandum: Respondent mother appeals from an order granting the petition seekingmodification of an order setting forth a visitation schedule with her daughter. We agree with themother that Family Court erred in entering a "default finding" on the petition based on her failureto appear at the hearing. The mother's counsel was present and was given the opportunity toparticipate in the hearing (see Matter ofDavid A.A. v Maryann A., 41 AD3d 1300 [2007]).
We further agree with the mother that the court erred in modifying her visitation schedulewithout conducting a hearing. "Determinations affecting custody and visitation should be madefollowing a full evidentiary hearing, not on the basis of conflicting allegations" (Matter ofNaughton-General v Naughton, 242 AD2d 937, 938 [1997]; see Matter of Smith vPatrowski, 226 AD2d 1073 [1996]). Inasmuch as the court failed to conduct a hearing, weare unable to determine on the record before us whether modification of the mother's visitationschedule was warranted. Present—Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green,JJ.