| Matter of Nalty v Kong |
| 2009 NY Slip Op 01484 [59 AD3d 723] |
| February 24, 2009 |
| Appellate Division, Second Department |
| In the Matter of Camellia M. Nalty, Appellant, v CliftonA. Kong, Respondent. (Proceeding No. 1.) In the Matter of Clifton A. Kong, Respondent, vCamellia M. Nalty, Appellant. (Proceeding No. 2.) |
—[*1] Posner & Gaier, Hempstead, N.Y. (Stephen Posner and Phyllis Gaier of counsel), forrespondent Clifton A. Kong. Amy L. Colvin, Huntington, N.Y., attorney for the child.
In related custody proceedings pursuant to Family Court Act article 6, in which the partiesrespectively sought custody of the subject child, the mother appeals from an order of the FamilyCourt, Nassau County (Philips, Ct. Atty. Ref.), dated March 26, 2008, which, after a hearing,awarded the parties joint custody of the child.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Nassau County, for a new hearing before a different CourtAttorney Referee, to be held with all convenient speed, and a new determination thereafter; andit is further,
Ordered that pending the final custody determination, the mother shall have temporary [*2]custody of the child, with visitation to the father each week fromTuesday at 3:00 p.m. until Wednesday at 9:00 p.m., and on alternate weekends from Friday at12:00 noon until Sunday at 6:00 p.m.
An award of custody must be based on the child's best interests (see Eschbach vEschbach, 56 NY2d 167, 171 [1982]). Generally, the determination of a custody issue canonly be resolved after a full and comprehensive hearing, and a careful analysis of the applicablefactors to be considered in determining what custody arrangement will further the child's bestinterests (see Obey v Degling, 37 NY2d 768, 769-770 [1975]; State ex rel. Hathawayv Baker, 103 AD2d 762, 762-763 [1984]). Hence, as a general rule, it is error, as a matter oflaw, to make an order respecting custody based upon controverted allegations without the benefitof a full hearing (see Matter of Roldan vNieves, 51 AD3d 803, 805 [2008]; Matter of Ling Da Chen v Yue Hua Zhou, 39 AD3d 753 [2007];Matter of Khan v Dolly, 6 AD3d437, 439 [2004]; Matter of Hudgins v Goodley, 301 AD2d 524 [2003]; Matter ofBenedict v Zimmer, 296 AD2d 459 [2002]; Matter of Klang v Klang, 235 AD2d476, 477 [1997]). Indeed, a custody determination must have a sound and substantial basis in therecord (see Matter of Roldan v Nieves, 51 AD3d at 805).
In deciding the parties' petitions for sole custody of the child, the Family Court, faced withcontroverted allegations, made a custody determination after an abbreviated hearing at which theevidence was insufficient to make an informed "best interests" determination. Under thesecircumstances, the Family Court's custody determination lacks a sound and substantial basis inthe record, and cannot be upheld (see Matter of Roldan v Nieves, 51 AD3d at 805;Matter of Machado v Del Villar, 299 AD2d 361 [2002]; State ex rel. Hathaway vBaker, 103 AD2d at 763). Accordingly, we reverse the order appealed from, and remit thematter to the Family Court, Nassau County, for a de novo hearing before a different CourtAttorney Referee, to be held with all convenient speed, and a new custody determinationthereafter.
The contentions of the father and the attorney for the child concerning the appealability ofthe order under review, as well as the reviewability of the mother's arguments, are without merit.Prudenti, P.J., Dillon, Covello and Leventhal, JJ., concur.