| Matter of Giovanni v Hall |
| 2011 NY Slip Op 05835 [86 AD3d 676] |
| July 7, 2011 |
| Appellate Division, Third Department |
| In the Matter of Yvette Giovanni, Appellant, v Brian K.Hall, Respondent. |
—[*1] Veronica M. Kosich, Catskill, attorney for the children.
Malone Jr., J. Appeal from an order of the Family Court of Greene County (Pulver, Jr., J.),entered September 30, 2010, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to, among other things, modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents offour children (born in 1996 and 1998). Following the mother's initial incarceration in 2002,Family Court awarded the father sole custody of the children and, in 2007, the parties stipulatedto, among other things, biweekly telephone visits between the mother and the children. Upon herrelease in January 2010 following the conclusion of a third term of imprisonment, the mothercommenced this proceeding seeking a modification of the prior order of custody. At the initialappearance, Family Court referred the parties to a mediation service, but an agreement wasapparently never reached. Thereafter, Family Court conducted an in camera interview with thechildren[FN*]and, without further proceedings, partially granted the mother's petition awarding her [*2]certain visitation with the children through February 2011, butdeclined to alter the custody arrangement. The mother now appeals.
"While not every petition in a Family Ct Act article 6 proceeding is automatically entitled toa hearing, [g]enerally an evidentiary hearing is necessary and should be conducted unless theparty seeking the modification fails to make a sufficient evidentiary showing to warrant a hearingor no hearing is requested and the court has sufficient information to undertake a comprehensiveindependent review of the [children's] best interests" (Matter of Twiss v Brennan, 82 AD3d 1533, 1534 [2011] [internalquotation marks and citations omitted]; see Matter of Christopher B. v Patricia B., 75 AD3d 871, 872[2010]; Matter of Chittick v Farver, 279 AD2d 673, 675 [2001]; cf. Obey vDegling, 37 NY2d 768, 770 [1975]). Although the majority of the allegations in the mother'spetition have no relation to the issues of custody and visitation, we find that, liberally construed,sufficient allegations appear in the petition to warrant an evidentiary hearing, and Family Courterred in disposing of the petition following only the parties' initial appearance and the in camerainterview with the children (see Matterof Cornell v Cornell, 8 AD3d 718, 719-720 [2004]). Also weighing in favor of a fullhearing is the fact that the prior two orders were entered upon consent of the parties, and itappears that there has yet to be a plenary hearing regarding the custody of the parties' childrenand the issue of visitation. Consequently, we reverse and remit to Family Court so that a hearingcan be held and, following which, Family Court can "undertake a comprehensive independentreview of the children's best interests" (Miller-Glass v Glass, 237 AD2d 723, 724 [1997];see Matter of Williams v Williams,35 AD3d 1098, 1099-1100 [2006]; Matter of Cornell v Cornell, 8 AD3d at719-720).
Peters, J.P., Rose, Lahtinen and McCarthy, JJ., concur. Ordered that the order is reversed, onthe law, without costs, and matter remitted to the Family Court of Greene County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: We note that Family Court, theparties and the attorney for the children erroneously refer to this as a Lincoln hearing(see Matter of Spencer v Spencer, 85 AD3d 1244, 1245 [2011]).