| Matter of Harris-Wilks v Harris |
| 2008 NY Slip Op 09304 [56 AD3d 1063] |
| November 26, 2008 |
| Appellate Division, Third Department |
| In the Matter of Audrey Harris-Wilks, Respondent, v CherlynnHarris, Appellant. |
—[*1] Norbert Higgins, Binghamton, for respondent. Karen Kimball, Law Guardian, Wynantskill.
Cardona, P.J. Appeal from an order of the Family Court of Broome County (Charnetsky, J.),entered July 13, 2007, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for custody of respondent's child.
The child in this custody matter was born in April 2003 and placed in the care of petitioner,the maternal grandmother, by respondent, the mother, when the child was approximately fourmonths old. In February 2007, the grandmother commenced this custody proceeding after themother failed to return the child to her care following what was apparently intended to be a shortvisit with the mother in Virginia. Family Court granted temporary sole custody of the child to thegrandmother pending resolution of the custody petition.
At the ensuing hearing, counsel's request for a continuance based upon the mother'sindication that she was unable to personally appear due to difficulty in finding transportationfrom Virginia was denied by Family Court. Following testimony by the grandmother only,Family Court found that extraordinary circumstances existed pursuant to Domestic RelationsLaw § 72 (2) and, upon proceeding to the best interest analysis, granted the grandmothersole custody of the child.[*2]
Initially, we are unpersuaded by the grandmother'scontention that the appeal should be dismissed because the mother cannot appeal from an orderentered on default (see CPLR 5511). Although the mother was not present at the hearing,her counsel appeared, explained her absence, unsuccessfully requested a continuance andthereafter participated in the hearing on her behalf. Under these circumstances, no default orderwas entered (see Matter of D'Entremont v D'Entremont, 254 AD2d 576, 576 [1998]).
Turning to the issue raised by the Law Guardian with respect to the denial of the mother'smotion for a continuance, we find that, under the circumstances herein, Family Courtimprovidently exercised its discretion in denying that motion (see Matter of Shepard, 286AD2d 336, 337 [2001]; cf. Matter of Claburn v Claburn, 128 AD2d 937, 938-939[1987]). Importantly, although the mother was previously unable to appear due to medicalrestrictions and her involvement in a serious car accident, there is no evidence in the record thatshe has deliberately engaged in delay tactics. Nor does it appear that her current request for acontinuance based on transportation difficulties was made for the purpose of delay. Furthermore,her testimony clearly was material inasmuch as she opposed the grandmother's request forcustody at the initial appearance, disputed the allegations in the petition, indicated that she placedthe child with the grandmother temporarily and had previously requested that the grandmotherreturn the child to her. In view of the foregoing, and given that the petition involves the rights ofa biological parent to the care and custody of her child, we find that the matter should be remittedto Family Court so that the mother may be given another opportunity to appear.
Finally, upon our review of the record, we find no error in Family Court awarding temporarycustody to the grandmother pending resolution of the custody petition.
Spain, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is reversed, on the law,without costs, and matter remitted to the Family Court of Broome County for further proceedingsnot inconsistent with this Court's decision, and, pending said proceedings, temporary physicalcustody of the child shall continue with petitioner.