| Matter of Pollard v Pollard |
| 2009 NY Slip Op 04587 [63 AD3d 1628] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Penina Pollard, Respondent, v Raheem Pollard,Appellant. |
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Appeal from an order of the Family Court, Jefferson County (Peter A. Schwerzmann, J.),entered May 30, 2008 in a proceeding pursuant to Family Court Act article 6. The order, interalia, modified a prior order of joint custody by granting petitioner permission for the parties'children to relocate with her to California.
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, Jefferson County, for a hearing on thepetitions.
Memorandum: Respondent father appeals from an order that, inter alia, modified a priororder of joint custody by granting petitioner mother permission for the parties' children torelocate with her to California. We agree with the father that Family Court erred in entering theorder upon "default" based on his failure to appear in court. The record establishes that the fatherwas represented by counsel, and we have previously determined that, "[w]here a party fails toappear [in court on a scheduled date] but is represented by counsel, the order is not one enteredupon the default of the aggrieved party and appeal is not precluded" (Matter of Kwasi S.,221 AD2d 1029, 1030 [1995]; see Matter of Shemeco D., 265 AD2d 860, 860-861[1999]; see also Matter of David A.A. vMaryann A., 41 AD3d 1300 [2007]). The court also erred in modifying the priorcustody order without conducting an evidentiary hearing. " 'Determinations affecting custodyand visitation should be made following a full evidentiary hearing, not on the basis of conflictingallegations' " (Matter of Kenneth M. vMonique M., 48 AD3d 1174, 1174-1175 [2008]), and we are unable to determine on therecord before us whether the court " 'possessed sufficient information to render an informeddetermination that was consistent with the child[ren]'s best interests' " (Matter of Hopkins v Gelia, 56 AD3d1286 [2008]). We therefore reverse the order and remit the matter to Family Court for ahearing on the petitions. Present—Hurlbutt, J.P., Smith, Centra, Pine and Gorski, JJ.