| Matter of Peek v Peek |
| 2010 NY Slip Op 09140 [79 AD3d 753] |
| December 7, 2010 |
| Appellate Division, Second Department |
| In the Matter of Carol T. Peek, Respondent, v Darryl C. Peek,Appellant. |
—[*1] Dennis G. Monahan, Nesconset, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from anorder of the Family Court, Nassau County (Eisman, J.), dated July 28, 2009, which, without a hearing,inter alia, granted sole custody of the subject child to the mother, with visitation to the father.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matter isremitted to the Family Court, Nassau County, for an evidentiary hearing on the issue of custody and anew determination thereafter; and it is further,
Ordered that pending the hearing and new determination, the subject child shall remain in the solecustody of the mother, and the provisions of the order dated July 28, 2009, regarding visitation shallremain in effect.
An award of custody must be based upon the best interests of the child, and there is no right ofeither parent to custody of the child (see Friederwitzer v Friederwitzer, 55 NY2d 89, 93[1982]; Matter of Francois v Hall, 73AD3d 1055 [2010]). Since the court has an obligation to make an objective and independentevaluation of the circumstances (see Trach v Trach, 162 AD2d 678 [1990]; Mosesku vMosesku, 108 AD2d 795 [1985]), a custody determination should be made only after a full andfair hearing at which the record is fully developed (see Obey v Degling, 37 NY2d 768 [1975];Matter of Patricia L. v Steven L., 119 AD2d 221 [1986]; Audubon v Audubon, 138AD2d 658 [1988]). Therefore, as a general rule, it is error to make an order respecting custody basedupon controverted allegations without the benefit of a full hearing (see Matter of Nalty v Kong, 59 AD3d 723 [2009]; Cieri v Cieri, 56 AD3d 409 [2008]; Matter of Roldan v Nieves, 51 AD3d803 [2008]; Matter of Ling Da Chen vYue Hua Zhou, 39 AD3d 753 [2007]).
Here, in light of the parties' conflicting allegations, the Family Court erred in awarding sole custodyof the subject child to the mother without the benefit of an evidentiary hearing. Nor did the courtconduct an examination of the parties, interview the child, or solicit the opinion of the attorney for thechild. Under such circumstances, it cannot be concluded that the court possessed sufficient informationto render an informed determination consistent with the child's best interests (cf. Matter of Vangas vLadas, 259 AD2d 755 [1999]). Accordingly, we remit the matter to the Family Court, NassauCounty, for a hearing and, thereafter, a new determination on the custody petition.[*2]
In light of our determination herein, it is unnecessary to reachthe father's remaining contention. Mastro, J.P., Florio, Leventhal and Sgroi, JJ., concur.