| Matter of Santiago v Halbal |
| 2011 NY Slip Op 07571 [88 AD3d 616] |
| October 27, 2011 |
| Appellate Division, First Department |
| In the Matter of Marianella Santiago,Respondent, v Christian Halbal, Appellant. |
—[*1] Marianella Santiago, respondent pro se. Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel),attorney for the children.
Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or aboutNovember 25, 2009, which granted petitioner mother's petition to suspend the father'sunsupervised visitation with the parties' children and directed that the father's visitation belimited to supervised visitation, unanimously reversed, on the law, without costs, and the matterremanded for a hearing.
In May 2008, the mother filed a petition seeking to modify an August 2007 order grantingunsupervised visitation to the father. The petition alleged that since the entry of the 2007 order,the father had become increasingly verbally, emotionally and physically abusive towards thechildren. In response, the father filed an affidavit disputing the mother's allegations and offeringhis own version of events. The court set a date for a fact-finding hearing on the mother's petition.After the court set the hearing date, it conducted a Lincoln hearing with the children. Onthe scheduled date for the hearing on the petition, the court did not conduct the hearing butinstead issued the order directing that the father's visitation be supervised.
A custody or visitation order may be modified only upon a showing that there has been asubsequent change of circumstances and modification is in the child's best interests (seeMatter of Wilson v McGlinchey, 2 NY3d 375 [2004]). In general, an evidentiary hearing isnecessary before a court modifies a prior order of custody or visitation (see Matter of Rousseau v Kraft, 72AD3d 1643 [2010] ["(d)eterminations affecting custody and visitation should be madefollowing a full evidentiary hearing, not on the basis of conflicting allegations"]; Naomi C. v Russell A., 48 AD3d203 [2008]).
Family Court should not have modified the prior order of visitation without holding anevidentiary hearing. We recognize that the judge here has presided over this matter for manyyears and is familiar with the parties and the children. Nevertheless, in light of the factualdisputes and allegations of parental alienation, the court should not have summarily granted relief[*2]without conducting a full hearing on whether any changes tovisitation were in the children's best interests (see Galanti v Kraus, 85 AD3d 723 [2011]; Matter of Richard W. v Maribel G., 78AD3d 480 [2010]). Indeed, the court initially recognized the need for such a hearing but theninexplicably issued its order without conducting the hearing. Concur—Andrias, J.P.,Sweeny, Moskowitz, Richter and RomÁn, JJ.