| Matter of Hopkins v Gelia |
| 2008 NY Slip Op 09228 [56 AD3d 1286] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of James R. Hopkins, Jr., Respondent, v Gina Gelia,Appellant. |
—[*1] Sharon Anscombe Osgood, Law Guardian, Buffalo, for Chance A.H. and DevinJ.H.
Appeal from an order of the Family Court, Erie County (Kevin M. Carter, J.), entered May30, 2007 in a proceeding pursuant to Family Court Act article 6. The order, among other things,granted petitioner sole custody of the parties' children.
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 modifying a prior order of jointcustody by awarding petitioner father sole custody of the parties' children, with visitation to themother. We agree with the mother that Family Court erred in entering the order upon "default"based on her failure to appear in court. The record establishes that the mother was represented bycounsel, and we have previously determined that, "[w]here a party fails to appear for a hearingbut is represented by counsel, the order is not one entered upon the default of the aggrieved partyand appeal is not precluded" (Matter of Kwasi S., 221 AD2d 1029, 1030 [1995]; seealso Matter of David A.A. v Maryann A., 41 AD3d 1300 [2007]; Matter of ShemecoD., 265 AD2d 860 [1999]).
We further agree with the mother that the court erred in modifying the prior order withoutconducting a hearing. " 'Determinations affecting custody and visitation should be madefollowing a full evidentiary hearing, not on the basis of conflicting allegations' " (Matter ofKenneth M. v Monique M., 48 AD3d 1174, 1174-1175 [2008]). Based upon the recordbefore us, we are unable to determine whether the court "possessed sufficient information torender an informed determination that was consistent with the child[ren]'s best interests"(Matter of Almasi v Bauer, 27 AD3d 1155, 1156 [2006] [internal quotation marksomitted]) and, indeed, the record is devoid of any indication that the court even considered thechildren's best interests. We therefore reverse the order and remit the matter to Family Court for ahearing on the petition. We note that, pending a new determination, the custody order enteredOctober 6, 2005, as amended by the order entered September 12, 2006, remains in effect.Present—Scudder, P.J., Hurlbutt, Fahey, Peradotto and Pine, JJ.