| Matter of Richard W. v Maribel G. |
| 2010 NY Slip Op 08354 [78 AD3d 480] |
| November 16, 2010 |
| Appellate Division, First Department |
| In the Matter of Richard W., Appellant, v Maribel G.,Respondent. |
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Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about December18, 2009, which modified a March 17, 2009 order of visitation to the extent of, inter alia, requiringappellant to travel to Pennsylvania to pick up his child for visitation, and directed that all future issues ofcustody and visitation should be determined by the state of Pennsylvania, unanimously reversed, on thelaw, without costs, and the matter remanded to Family Court for further proceedings consistentherewith.
Family Court erred in modifying the March 17, 2009 order of visitation without first conducting afull evidentiary hearing to ascertain the child's best interests (see Matter of Gross v Gross, 7 AD3d 711 [2004]) and to determinewhether there had been a subsequent change in circumstances (see Matter of Wilson vMcGlinchey, 2 NY3d 375 [2004]). Additionally, there was no petition for modification of thevisitation provisions of the prior order properly before the court (see Matter of Nakis-Batos vNakis, 191 AD2d 443 [1993]).
Family Court also erred by failing to determine whether it had exclusive continuing jurisdiction(Domestic Relations Law § 76-a; seeStocker v Sheehan, 13 AD3d 1 [2004]), and the court should do so upon remand. Similarly,it was improper to refer "subsequent issues regarding custody and visitation" to Pennsylvania. Indeed,such a determination must await an actual controversy (Matter of King v King, 251 AD2d1028 [1998]).
The court should have advised the parties of the right to counsel, which would have included theright for an adjournment if necessary to consult with a lawyer. Concur—Gonzalez, P.J.,Mazzarelli, Andrias, Nardelli and Richter, JJ.