| Matter of Amato v Amato |
| 2008 NY Slip Op 04033 [51 AD3d 1123] |
| May 1, 2008 |
| Appellate Division, Third Department |
| In the Matter of James A. Amato, Respondent, v Stacey Amato,Appellant. (And Two Other Related Proceedings.) |
—[*1] Marie Lally Clark, Law Guardian, Valatie.
Rose, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredMay 18, 2007, which, among other things, granted petitioner's application, in three proceedingspursuant to Family Ct Act article 6, for custody of the parties' child.
In these three custody proceedings, the father, mother and paternal grandmother of the child(born in 2004) each seek custody. After a hearing on all of the parties' petitions, at which only thethree parties testified and the paternal grandmother testified in favor of the father, Family Courtawarded sole custody of the child to the father, granted alternate weekend visitation with themother and dismissed the grandmother's petition as moot. The mother now appeals.
While we agree with Family Court that the evidence at the hearing raised significantconcerns about the suitability of both the mother and father as the custodial parent, we find thatthe record is insufficient to support Family Court's resolution of those concerns or to permit ourown full and proper assessment of how they may affect the best interests of the child. Forexample, Family Court determined that the father's home life was more stable than that of themother, based on his work schedule and the support of the paternal grandmother. However, sinceboth parents and the grandmother work full time and the child would have to be in the care ofothers regardless of who has custody, this factor should not have been determinative without ahome study placed on the record or other evidence as to the child's day-to-day life with each[*2]parent. Similarly, in the absence of forensic evaluation of themother, Family Court should not have based its determination of custody upon the father's andgrandmother's bare allegation that the mother suffers from unresolved emotional trauma due to aviolent crime and the possible suicide of her father. Accordingly, the record must be developedfurther to permit a proper determination regarding the best interests of the child (see Matter ofMix v Gray, 265 AD2d 692, 694 [1999]; Castler v Castler, 233 AD2d 720, 721[1996]; Matter of Estrada v Estrada, 154 AD2d 376, 376 [1989]).
Moreover, while the appointment of a law guardian is not statutorily mandated in contestedcustody proceedings (cf. Family Ct Act § 249 [a]), doing so is the preferredpractice and such an appointment here would have played an important role in developing therecord and assessing the interests of the child (see Matter of Figueroa v Lopez, 48 AD3d 906, 907 [2008]). Giventhe substantial questions raised about the fitness of both of these parents, the interest of each ofthe witnesses in the outcome of the proceedings, and the lack of a forensic evaluation and homestudy, we are of the view that the failure to appoint a law guardian here was an abuse ofdiscretion because it deprived the child of an advocate to further investigate the parents andpresent evidence as to his interests beyond that offered by the parties (see Matter of Robinson v Cleveland,42 AD3d 708, 710 [2007]). Therefore, Family Court's determination of custody must bereversed and the matter remitted for further proceedings.
Peters, J.P., Spain, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and matter remitted to the Family Court of Delaware County for furtherproceedings not inconsistent with this Court's decision, and, pending said proceedings, temporaryphysical custody of the child shall continue with the father, and the mother shall continueexercising the previously ordered visitation.