| Christensen v Christensen |
| 2008 NY Slip Op 08153 [55 AD3d 1453] |
| October 27, 2008 |
| Appellate Division, Fourth Department |
| Laurie A. Christensen, Appellant, v Robert Thomas Christensen,Respondent. (Appeal No. 1.) |
—[*1] Keith D. Bowers, Herkimer, for defendant-respondent. Cecilia Fagan Polidori, Law Guardian, Herkimer, for Courtney Nicole C. and Andrea MarieC.
Appeal from an order of the Supreme Court, Herkimer County (Michael E. Daley, J.),entered October 5, 2007. The order, insofar as appealed from, denied that part of plaintiff'smotion seeking an evidentiary hearing with respect to temporary custody of the parties' childrenand visitation with them and granted temporary custody of the children to defendant andvisitation to plaintiff.
It is hereby ordered that the order insofar as appealed from is unanimously reversed on thelaw without costs, plaintiff's motion is granted in its entirety and the matter is remitted toSupreme Court, Herkimer County, for further proceedings in accordance with the followingmemorandum: Plaintiff commenced this action seeking, inter alia, a divorce and custody of theparties' children, and defendant counterclaimed for that same relief. In appeal No. 1, plaintiffappeals from an order that, inter alia, denied that part of her motion seeking an evidentiaryhearing with respect to temporary custody of the children and visitation with them and, instead,awarded temporary custody of the parties' children to defendant, with visitation to plaintiff. Inappeal No. 2, plaintiff appeals from an order that, upon Supreme Court's "own motion andproceedings of October 19, 2007," disqualified plaintiff's attorney from representing plaintiff.
We agree with plaintiff in appeal No. 1 that the court erred in awarding temporary custody todefendant without conducting an evidentiary hearing (see Femia v Femia, 23 AD3d 1073[2005]). " 'An award of custody, whether temporary or permanent, must be based on the bestinterests of the child[ren]' " (Matter of Smith v Brown, 272 AD2d 993, 993 [2000]).Here, despite the conflicting allegations of the parties concerning their respective parentingabilities, the court based its temporary custody determination solely on an in-camera interviewwith the children and communications with the parties' attorneys during two court appearances.Contrary to the determination of the court, it did not have the discretion to forgo an evidentiaryhearing. We therefore reverse the order insofar as appealed from in appeal No. 1, grant plaintiff'smotion in its entirety and remit the matter to Supreme Court for a hearing and a newdetermination with findings of fact before a different justice.[*2]
We further agree with plaintiff that the court erred indisqualifying her attorney on its own motion, and we therefore also reverse the order in appealNo. 2. Plaintiff's attorney, a judicial hearing officer for Oneida County Family Court, was notprohibited by either judicial or ethical rules from representing clients before a different court in adifferent county (see 22 NYCRR 122.10 [c]; Advisory Comm on Jud Ethics Ops 89-63[1989], 07-180 [2007]). If an attorney's representation of a client "does not violate [an] ethical ordisciplinary rule, there can be no appearance of impropriety" (Develop Don't DestroyBrooklyn v Empire State Dev. Corp., 31 AD3d 144, 153 [2006], lv denied 8 NY3d802 [2007]). In any event, the mere appearance of impropriety alone would be insufficient towarrant disqualification. Rather, it must be shown that a party will suffer actual prejudice or asubstantial risk thereof (see id.; Matter of Stephanie X., 6 AD3d 778, 780[2004]), and there was no such showing in this case. Present—Smith, J.P., Centra, Lunn,Fahey and Green, JJ.