| Matter of Cole v Cole |
| 2011 NY Slip Op 07328 [88 AD3d 1104] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of James Cole, Respondent, v Jennifer Cole,Appellant. (And Another Related Proceeding.) |
—[*1] Kathleen M. Spann, Greene, for appellant. Daniel J. Cain, Elmira, for respondent. Paul R. Hart, Elmira, attorney for the children.
Garry, J. Appeal from an order of the Family Court of Chemung County (Buckley, J.),entered December 1, 2010, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, for custody of the parties' children.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents oftwo sons (born in 2007 and 2008). In June 2010, the father filed a petition for custody of thechildren. He thereafter left the marital residence at the home of the maternal grandmother, andrelocated to the paternal grandmother's home. In July 2010, the mother filed a petition seekingcustody of the children. At the initial appearance, Family Court assigned an attorney for thechildren and temporarily ordered joint legal custody of the children with physical custody to themother and, when the mother was working, childcare provided by the father at the maternalgrandmother's home. At the next appearance, the father requested shared physical custody of thechildren and Family Court granted this as to weekends, when the mother was working. At thethird and final appearance, in November 2010, Family Court issued a final order essentiallybased upon this same arrangement.
The mother appeals, arguing that Family Court erred by issuing a final order without [*2]conducting a hearing or engaging in other formalities such asplacing stipulations or consent of the parties upon the record. An evidentiary hearing is generallynecessary to determine custody matters, but it is not obligatory where, as here, no request is madeand " 'the court has sufficient information to undertake a comprehensive independent review ofthe [children's] best interests' " (Matterof Giovanni v Hall, 86 AD3d 676, 677 [2011], quoting Matter of Twiss v Brennan, 82 AD3d1533, 1534 [2011]; see Matter of Oliver S. v Chemung County Dept. of SocialServs., 162 AD2d 820, 821-822 [1990]). Although no sworn testimony was taken, all threeappearances before Family Court were attended by each of the parents, their respective attorneys,and both grandmothers, and the court invited and received input from all involved. The attorneyfor the children attended the two later appearances, and advocated a position based on interviewswith the mother, her employer, the father and various service providers for the children. Further,the Chemung County Department of Social Services provided Family Court with a reportassessing the needs of the children and the current family circumstances. The two parents, withthe support of the two grandmothers, were essentially collaborating relative to the matters ofsharing time and the responsibilities of caring for their children during the course of theproceedings, and Family Court found this structure in the best interests of the children. Althoughthe mother was represented by counsel at all three appearances, at no time did she or her counselrequest a hearing or other formalities. Upon review, we find that Family Court had sufficientinformation before it to support the determination (see Matter of Balram v Balram, 53 AD3d 808, 809-810 [2008],lv denied 11 NY3d 708 [2008]; Matter of Beverly v Bredice, 299 AD2d 747, 748[2002]).
Mercure, J.P., Rose, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.