| Matter of Savoca v Bellofatto |
| 2013 NY Slip Op 01414 [104 AD3d 695] |
| March 6, 2013 |
| Appellate Division, Second Department |
| In the Matter of Kimberly Savoca,Respondent, v John Bellofatto, Appellant. |
—[*1] Robert C. Mitchell, Riverhead, N.Y. (John B. Belmonte of counsel), attorney for thechild.
In a child custody proceeding pursuant to Family Court Act article 6, the fatherappeals from an order of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.),dated February 27, 2012, which, without a hearing, awarded the mother sole legal andphysical custody of the parties' child.
Ordered that the order is reversed, on the law and in the exercise of discretion,without costs or disbursements, and the matter is remitted to the Family Court, SuffolkCounty, for an evidentiary hearing on the issue of custody and visitation, and a newdetermination thereafter.
"An award of custody must be based upon the best interests of the child, and there isno right of either parent to custody of the child" (Matter of Peek v Peek, 79 AD3d 753, 753-754 [2010];see Domestic Relations Law § 70 [a]; Friederwitzer vFriederwitzer, 55 NY2d 89, 93 [1982]; Matter of Francois v Hall, 73 AD3d 1055 [2010])."Generally, the determination of a custody issue can only be resolved after a full andcomprehensive hearing, and a careful analysis of the applicable factors to be consideredin determining what custody arrangement will further the child's best interests" (Matter of Nalty v Kong, 59AD3d 723, 724 [2009]; see Obey v Degling, 37 NY2d 768, 769-770 [1975];Matter of Peek v Peek, 79 AD3d at 753-754; Audubon v Audubon, 138AD2d 658, 658-659 [1988]).
Here, contrary to the statement in the order appealed from to the effect that a hearinghad been held, the mother's petition for custody was granted without a hearing. Inaddition, the Family Court did not conduct an examination of the parties or obtain aforensic report from an expert. Although the Family Court did ask the attorney for thechild for an argument on behalf of her two-year-old client, the attorney for the childstated that a social worker from her office would be sent to visit the child, but this hadnot yet been done when the order was issued. Under these circumstances, "it cannot beconcluded that the court possessed sufficient information to render an informeddetermination consistent with the child's best interests" (Matter of Peek v Peek,79 AD3d at 754; see Matter ofPerez v Estevez, 82 AD3d 1106, 1106-1107 [2011]; Matter of Nalty vKong, 59 AD3d at 724; Matter of Roldan v Nieves, 51 AD3d 803, 805 [2008]; cf. Matter of Feldman vFeldman, 79 AD3d 871 [2010]). Since there was no hearing, the court alsofailed to make "specific findings of fact with respect to the issue of custody," as it isrequired to do (Audubon v Audubon, 138 AD2d at 659; see Mauter vMauter, 309 AD2d 737, 738 [2003]).
The order must be reversed and the matter remitted for an evidentiary hearing notonly [*2]for the reasons stated above, but for theadditional reason that the father effectively was deprived of his statutory right to counsel(see Family Ct Act § 262 [a] [v]). Section 262 (a) (v) of the Family CourtAct confers the right to the assistance of counsel upon "the parent of any child seekingcustody or contesting the substantial infringement of his or her right to custody of suchchild, in any proceeding before the court in which the court has jurisdiction to determinesuch custody." The statute further provides that "[w]hen such person first appears incourt, the judge shall advise such person before proceeding that he or she has the right tobe represented by counsel of his or her own choosing, of the right to have anadjournment to confer with counsel, and of the right to have counsel assigned by thecourt in any case where he or she is financially unable to obtain the same" (Family Ct Act§ 262 [a]). "The deprivation of a party's right to counsel guaranteed by this statute'requires reversal, without regard to the merits of the unrepresented party's position' " (Matter of Collier v Norman, 69AD3d 936, 937 [2010], quoting Matter of Brown v Wood, 38 AD3d 769, 770 [2007]; see Matter of Rosof v Mallory,88 AD3d 802, 802-803 [2011]). Here, at the start of the proceeding, the FamilyCourt acknowledged that, prior thereto, the father's attorney had requested anadjournment "to at least consider whether she want[ed] to continue representing [thefather]." Nonetheless, the court proceeded to determine the custody issue without ahearing. Moreover, the court neither advised the father of his right to an attorney, noradvised him of his right to an adjournment to obtain new counsel, notwithstanding astatement to the contrary contained in the order appealed from. An attorney from theoffice of the father's counsel was apparently present when the court rendered itsdetermination, but she did not appear to be representing the father. While "adjournmentsare within the discretion of the trial court" the "range of that discretion is narrowed. . . where a fundamental right such as the right to counsel is involved"(Matter of Patricia L. v Steven L., 119 AD2d 221, 226 [1986] [citationsomitted]). Under the circumstances presented here, "[i]nstead of directing the matter togo forward, the Family Court should have exercised its discretion to grant anadjournment" (Matter of Doinov Cartelli, 77 AD3d 830, 831 [2010]) to permit the father to reach anunderstanding with his counsel, or to obtain new counsel. Dillon, J.P., Dickerson,Leventhal and Hinds-Radix, JJ., concur.