| Matter of Roldan v Nieves |
| 2008 NY Slip Op 04527 [51 AD3d 803] |
| May 13, 2008 |
| Appellate Division, Second Department |
| In the Matter of Angelo Roldan et al.,Respondents, v Maribel Nieves, Appellant. (Proceeding No. 1.) In the Matter of MaribelNieves, Appellant, v Angelo Roldan, Respondent. (Proceeding No. 2.) In the Matter of MaribelNieves, Appellant, et al., Petitioner, v Angelo Roldan et al., Respondents. (Proceeding No. 3.) Inthe Matter of Maribel Nieves, Appellant, et al., Petitioner, v Angelo Roldan et al., Respondents.(Proceeding No. 4.) |
—[*1] Amy L. Colvin, Halesite, N.Y., for respondent Angelo Roldan. Anne M. Serby, Long Beach, N.Y., for respondent Evelyn Pagan. Cheryl L. Kreger, Garden City, N.Y., attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Act article 6, themother appeals, as limited by her brief, from so much of (1) an order of the Family Court, NassauCounty (Kase, J.), dated June 22, 2006, as, after a hearing, granted the joint petition of the fatherand paternal grandmother for permanent custody of the subject child and awarded her onlysupervised visitation, (2) an order of the same court also dated June 22, 2006, as dismissed herthree petitions for, inter alia, custody and visitation, and (3) an order of the same court (Aaron,J.), dated December 15, 2006, as, upon her motion to vacate a certain provision of the secondorder dated June 22, 2006, directed that the custody and visitation provisions of the first orderdated June 22, 2006, shall remain in full force and effect.
Ordered that the first order dated June 22, 2006, granting the joint petition of the father andpaternal grandmother for permanent custody of the subject child, is reversed insofar as appealedfrom, on the law and the facts, without costs or disbursements, so much of the order datedDecember 15, 2006, as directed that the custody and visitation provisions of the first order datedJune 22, 2006, shall remain in full force and effect, is vacated, and the matter is remitted to theFamily Court, Nassau County, for a de novo hearing on custody to be held in accordanceherewith and thereafter for a new determination of the joint petition of the father and paternalgrandmother; and it is further,
Ordered that pending the new determination of the petition of the father and paternalgrandmother for permanent custody, the father shall have temporary sole custody of the child,and the mother shall have supervised visitation with the child one day per week, with telephonecommunication every other day; and it is further,
Ordered that the appeal from the second order dated June 22, 2006, dismissing the mother'spetitions for, inter alia, custody and visitation, is dismissed as abandoned (see 22NYCRR 670.8 [e]), without costs or disbursements; and it is further,
Ordered that the appeal from the order dated December 15, 2006, is dismissed as academic,in light of our determination on the appeal from the first order dated June 22, 2006, without costsor disbursements.
"[A]s a general rule, it is error as a matter of law to make an order respecting custody basedupon controverted allegations without the benefit of a full hearing" (Matter of Khan v Dolly, 6 AD3d437, 439 [2004]). Furthermore, an award of custody must be based on the child's bestinterests based upon consideration of the totality of the circumstances (see Matter of Ling Da Chen v Yue HuaZhou, 39 AD3d 753, 753-754 [2007]). Factors to be considered include the parentalguidance provided by the custodial parent, each parent's ability to provide for the child'semotional and intellectual development, each parent's ability to provide for the child financially,the relative fitness of each parent, and the effect an award of custody to one parent might have onthe child's relationship with the other parent (see Matter of Berrouet v Greaves, 35 AD3d 460, 461 [2006]).
"Since the Family Court's custody determination is largely dependent upon an assessment ofthe credibility of the witnesses and upon the character, temperament, and sincerity of the parents,its determination should not be disturbed unless it lacks a sound and substantial basis in therecord" (Matter of Dobbins v Vartabedian, 304 AD2d 665, 666 [2003]). However, an"appellate court would be seriously remiss if, simply in deference to the finding of a Trial Judge,it allowed a custody[*2]. . . determination to standwhere it lack[ed] a sound and substantial basis in the record" (Matter of Grisanti v Grisanti, 4 AD3d 471, 474 [2004]).
Here, the Family Court's order granting the father and the paternal grandmother permanentcustody of the child was made after an abbreviated hearing at which the evidence was insufficientto make an informed best-interests determination. As such, the determination does not have asound and substantial basis in the record, and cannot stand. The record indicates that the FamilyCourt did not consider the totality of the circumstances in making its determinations with respectto the issue of custody and the child's best interests (see Matter of Lightbody v Lightbody, 42 AD3d 537, 537-538[2007]; Matter of Ling Da Chen v YueHua Zhou, 39 AD3d 753, 754 [2007]). Rather, the Family Court awarded the father andpaternal grandmother custody based on its finding that the mother was frustrating the father'sattempts to visit with the child and also based on testimony about the mother's other children,which was insufficient to justify the change in custody (see Matter of Fallarino v Ayala, 41 AD3d 714, 715 [2007]).Furthermore, the Family Court erred in awarding the paternal grandmother joint custody of thechild against the mother's wishes, as there was no threshold showing of extraordinarycircumstances, which is necessary where a nonparent seeks custody (see Matter of Esposito v Shannon, 32AD3d 471, 471-475 [2006]).
Based on the foregoing, we remit this matter to the Family Court, Nassau County, for a denovo hearing on custody, to include the ordering of such forensic evaluations of the parties andthe child and home study reports as may be appropriate. The new hearing is to be held with alldeliberate speed and it shall continue on a day-to-day basis until completed. Moreover, basedupon the evidence of the mother's interference with the father's visitation rights when she hadcustody of the child, and to avoid shuttling the child back and forth, we find it appropriate for thefather to have temporary sole custody of the child pending the new determination, with themother to have supervised visitation and regular telephone contact with the child.
The mother's remaining contentions either are not properly before the Court or have beenrendered academic in light of our determination.
Motion by the appellant on appeals from two orders of the Family Court, Nassau County,both dated June 22, 2006, and an order of the same court dated December 15, 2006, inter alia, tostrike stated portions of the respondents' briefs. By decision and order on motion of this Courtdated February 14, 2008, that branch of the motion which is to strike stated portions of therespondents' briefs was held in abeyance and referred to the panel of Justices hearing the appealsfor determination upon the argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the submission of the appeals, it is
Ordered that the branch of the motion which is to strike stated portions of the respondents'briefs is denied as unnecessary in light of the fact that any improper material has not beenconsidered in determining the appeals. Spolzino, J.P., Lifson, Florio and Dickerson, JJ., concur.