| Matter of Perez v Estevez |
| 2011 NY Slip Op 02399 [82 AD3d 1106] |
| March 22, 2011 |
| Appellate Division, Second Department |
| In the Matter of Michelle Perez, Respondent, v Andy F.Estevez, Appellant. |
—[*1] Gail M. Berkowitz, Northport, N.Y., for respondent. Roberta Fox, Sea Cliff, N.Y., Attorney for the Child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, aslimited by his brief, from so much of an order of the Family Court, Nassau County (Eisman, J.),dated December 15, 2009, as, without a hearing, awarded the mother sole legal and residentialcustody of the subject child.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Nassau County, for an evidentiaryhearing on the issue of custody and for a new determination on the petition thereafter; and it isfurther,
Ordered that pending the hearing and new determination, the subject child shall remain in thesole custody of the mother, and the provisions of the order dated December 15, 2009, regardingtelephone contact between the father and the subject child shall remain in effect.
"[A]s a general rule, it is error as a matter of law to make an order respecting custody basedupon controverted allegations without the benefit of a full hearing" (Matter of Khan vDolly, 6 AD3d 437, 439 [2004]; see Matter of Peek v Peek, 79 AD3d 753 [2010];Matter of Klang v Klang, 235 AD2d 476 [1997]; see also Matter of Garcia vRamos, 79 AD3d 872 [2010]). "Since the court has an obligation to make an objective andindependent evaluation of the circumstances, a custody determination should be made only aftera full and fair hearing at which the record is fully developed" (Matter of Peek v Peek, 79AD3d at 754 [citations omitted]). However, "it is not necessary to conduct such a hearing wherethe court already possesses sufficient relevant information to render an informed determination inthe child's best interest" (Matter of Feldman v Feldman, 79 AD3d 871, 871 [2010];cf. Matter of Peek v Peek, 79 AD3d 753 [2010]).
Under the circumstances of this case, the Family Court lacked sufficient information torender an informed determination as to the child's best interest, and thus, the matter must beremitted [*2]to the Family Court, Nassau County, for anevidentiary hearing (see Matter of Peek v Peek, 79 AD3d 753 [2010]; Matter of Khanv Dolly, 6 AD3d at 439). The fact that the father was incarcerated at the time that the FamilyCourt made its determination was an insufficient basis to award sole custody to the motherwithout first affording the father the benefit of a hearing (see Matter of Depuy-Wade vWade, 298 AD2d 655, 656 [2002]; Matter of D'Entremont v D'Entremont, 254 AD2d576, 576-577 [1998]).
The parties' remaining contentions have been rendered academic in light of our determinationor are without merit. Angiolillo, J.P., Florio, Belen and Miller, JJ., concur.