| Matter of Odeh v Assad |
| 2010 NY Slip Op 05773 [74 AD3d 1345] |
| June 29, 2010 |
| Appellate Division, Second Department |
| In the Matter of Youssef Odeh, Respondent, v ZahraAssad, Appellant. Children's Law Center, Nonparty Appellant. |
—[*1] Deana Balahtsis, New York, N.Y., for the children Roqaiah Odeh and Ali Odeh. Children's Law Center, Brooklyn, N.Y. (Karen P. Simmons, Janet Neustaetter, and BarbaraH. Dildine of counsel), attorney for the child Fatimah Odeh, nonparty appellant pro se.
In related child custody proceedings pursuant to Family Court Act article 6, the motherappeals, by permission, from an order of the Supreme Court, Kings County (IDV Part,Morgenstern, J.), dated July 8, 2009, which granted the father's application for a temporarytransfer of custody of the subject children to him, made in connection with the father's petitionsto modify a consent order of custody of the same court dated March 29, 2009, which awardedsole custody of the children to the mother, and the Children's Law Center separately appeals, bypermission, from so much of the same order as granted that branch of the father's applicationwhich sought a temporary transfer of custody of the child Fatimah Odeh to him.
Ordered that the order dated July 8, 2009 is reversed, on the law, on the facts, and in theexercise of discretion, without costs or disbursements, and the matter is remitted to the SupremeCourt, Kings County (IDV Part), before a different Justice, for further proceedings consistentherewith; and it is further,
Ordered that pending determination of the father's petitions to modify the consent order ofcustody dated March 29, 2009, or the issuance, following a hearing, of an order of temporarycustody by the Supreme Court, Kings County (IDV Part), the custody of the children shallremain with the mother, and the visitation rights of the father set forth in the order of theSupreme Court, Kings County (IDV Part), dated June 18, 2009, shall remain in effect.
The mother and the father, who were never married, have three children who remained in themother's custody after the couple permanently separated in 2003. On March 29, 2009, by consentorder of custody, the mother was awarded sole custody of the children and the father wasawarded visitation with the two younger children. The father voluntarily withdrew, withoutprejudice, his application for visitation with the oldest child, who was estranged from him andfearful of visitation with him. On June [*2]4, 2009 the father,claiming that the mother was alienating the children from him, petitioned to modify the consentorder to award him sole custody of all three children. While that petition was pending, themother violated the consent order and an order of the Supreme Court dated June 18, 2009,setting forth the father's visitation schedule, by failing to deliver one of the two younger childrento the father for a two-week summer vacation. The father filed a second petition to modify theconsent order and for immediate temporary custody of all three children. When the mother failedto appear in court the following day with the younger child as directed, the court, by order datedJuly 8, 2009, granted, without a hearing, the father's application for temporary custody of thethree children.
By decision and order on motion dated August 14, 2009, this Court granted the mother'smotion for leave to appeal from the order dated July 8, 2009, granted the separate motion of theattorney for the oldest child for leave to appeal from so much of the order as awarded temporarycustody of the oldest child to the father, and stayed enforcement of the order pending appeal.Notwithstanding this Court's order, the Supreme Court directed that the two younger children beplaced in the father's continuous care, with supervised visitation to the mother. By decision andorder on motion dated October 7, 2009, this Court granted the mother's motion to direct thereturn of the two younger children to her care and custody pending appeal. We reverse the orderdated July 8, 2009.
In order to modify a consent order granting sole custody to a parent, " 'there must be ashowing of a change of circumstances such that modification is required to protect the bestinterests of the child' " (Matter of Gilleo v Williams, 71 AD3d 1023, 1023 [2010],quoting Matter of Zeis v Slater, 57 AD3d 793, 793 [2008]; see Matter of Mingo vBelgrave, 69 AD3d 859 [2010]; see generally Eschbach v Eschbach, 56 NY2d 167,171 [1982]). While custody may properly be fixed without a hearing where sufficient facts areshown by uncontroverted affidavits (see Cieri v Cieri, 56 AD3d 409, 410 [2008];Carlin v Carlin, 52 AD3d 559, 560 [2008]; Matter of Jones v Scaldini, 238AD2d 422, 422-423 [1997]; Senior v Senior, 152 AD2d 784, 785 [1989]), here, therewere disputed issues, and the alleged misconduct of the mother did not dispense with the needfor a hearing with respect to the change in circumstances and the best interests of the children.Therefore, it was error for the Supreme Court to change custody of the children, eventemporarily, without first holding a hearing. Consequently, we reverse the order dated the July 8,2009, and remit the matter to a different Justice for further proceedings in accordance herewith.
Upon remittal, the Supreme Court must hold a hearing on the father's application for atemporary transfer of custody unless that application shall have been rendered academic bydetermination of the father's petitions to modify the consent order of custody. Fisher, J.P.,Covello, Hall and Sgroi, JJ., concur.