| Matter of Middlemiss v Pratt |
| 2011 NY Slip Op 05823 [86 AD3d 658] |
| July 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Wanda Middlemiss, Respondent, v Vincent A.Pratt, Appellant. |
—[*1] Reginald H. Bedell, Elizabeth, for respondent. Barry J. Jones, Hudson Falls, attorney for the child.
Spain, J.P. Appeals (1) from an order of the Family Court of St. Lawrence County (Potter,J.), entered March 17, 2010, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify prior orders of custody, and (2) from an order ofsaid court, entered April 20, 2010, which denied respondent's motion for reconsideration.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of ason (born in 1995). Pursuant to a prior order of custody, the parties shared joint custody of thechild and had equal parenting time on alternating weeks. In April 2009, the father commenced aproceeding by filing a petition for enforcement and modification of that order, alleging, amongother things, that the mother had failed to deliver the child to him for parenting time beginning inOctober 2008, and seeking full custody of the child and that the mother's parenting time besupervised. The mother cross-petitioned for modification, seeking full custody and parentingtime with the father as agreed upon by the father and the child. Thereafter, the father filed asecond petition, alleging that the mother had violated the prior order of custody, but that petitionwas dismissed after Family Court determined that the requested relief was identical to certainrelief he had sought in his first petition. Just before the commencement of the fact-findinghearing, the father withdrew the first petition, leaving only the mother's modification petitionpending before the court.[*2]
During the fact-finding hearing, the mother completed herdirect testimony but, due to witness availability and upon the consent of the parties, witnesseswere then taken out of order, and the father was not afforded an opportunity to cross-examine themother. The mother called several more witnesses, including the child, who testified in opencourt under oath. After the child testified, Family Court, sua sponte, concluded that it did notneed to permit any cross-examination of the mother or any testimony from the father—or,indeed, to allow the presentation of any further evidence—in order to reach a decision. Thecourt then suspended the father's parenting time and concluded the proceeding and, later, issued awritten order embodying its decision. The father subsequently moved the court forreconsideration, but that motion was denied. The father now appeals from the order suspendinghis parenting time and from the denial of his motion for reconsideration.
The father's main contention on appeal is that Family Court deprived him of his right toprocedural due process.[FN*]We agree. In a proceeding pursuant to Family Ct Act article 6 seeking modification of a priorcustody order, a " 'full and comprehensive hearing' " is required (Matter of Stukes vRyan, 289 AD2d 623, 624 [2001], quoting Matter of Zupo v Edwards, 161 AD2d972, 972 [1990]). At such a hearing, due process requires that a parent be afforded " 'a full andfair opportunity to be heard' " (Matter ofTelsa Z. [Denise Z.], 84 AD3d 1599, 1600 [2011], quoting Matter of Gordon L. vMichelle M., 296 AD2d 628, 630 [2002]). Here, Family Court abjectly denied the father dueprocess by refusing him any opportunity to cross-examine a key witness, the mother, present anywitnesses or even testify on his own behalf (cf. Matter of Telsa Z. [Denise Z], 84 AD3dat 1600; Matter of Gordon L. v Michelle M., 296 AD2d at 630).
Accordingly, we must reverse and remit for a full hearing on the merits and, given FamilyCourt's wholesale refusal to entertain the father's position, the case should be remitted to adifferent judge for further proceedings not inconsistent with this decision (see Matter of Williams v Williams, 35AD3d 1098, 1100 [2006]; Matter ofCornell v Cornell, 8 AD3d 718, 719-720 [2004]). Moreover, given the circumstancessurrounding this improper suspension of the father's parenting time, we direct that, within 14days from the entry of this order, Family Court conduct a hearing to fashion a temporary order ofcustody and parenting time. In light of the foregoing, the father's challenge to the denial of hismotion for reconsideration has been rendered academic.
Kavanagh, Stein, Garry and Egan Jr., JJ., concur. Ordered that the order entered March 17,2010 is reversed, on the law, without costs, matter remitted to the Family Court of St. LawrenceCounty for further proceedings not inconsistent with this decision before a new judge, and,within 14 days of the date of entry of this order, the court is directed to conduct a hearing andissue a temporary order of custody and [*3]visitation pending aprompt determination of the instant petition. Ordered that the appeal from the order entered April20, 2010 is dismissed, as academic, without costs.
Footnote *: Although the father did notpreserve this argument through objection, the argument is properly before us, as Family Court'sabrupt termination of the proceedings afforded him no opportunity to enter any objection(see Family Ct Act § 1118; CPLR 5501 [a] [3]).