Opinion
7956
12-27-2018
In re ABEL A., Petitioner–Respondent, v. IMANDA M., Respondent–Appellant.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant. Andrew J. Baer, New York, for respondent.
Law Office of Thomas R. Villecco, P.C., Jericho (Thomas R. Villecco of counsel), for appellant.
Andrew J. Baer, New York, for respondent.
Acosta, P.J., Gische, Mazzarelli, Webber, Oing, JJ.
Order, Family Court, Bronx County (Lisa S. Headley, J.), entered on or about February 1, 2018, which denied the mother's motion to vacate the order of custody dated January 9, 2018, that, after an inquest and upon her default, awarded the father custody of the children, unanimously reversed, on the law, without costs, the motion to vacate granted, and the matter remanded for further proceedings in Family Court in accordance with this decision.
The parties, Abel A. (father) and Imanda M. (mother), are the parents of the two subject children. In July 2017, after 17 months of the parties' separation, the father consented that the mother have sole custody of the children and the parties entered into a visitation agreement before the same court. Three months later, in October 2017, the father filed a petition for custody, alleging that the mother was interfering with his parenting time.
Upon the mother's failure to appear at an inquest on the father's petition for custody of the children, Family Court issued a custody determination. The mother moved to vacate that order, and the court denied it. We now reverse.
While the decision to grant or deny a motion to vacate a default rests in the sound discretion of the court, "default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously" ( Matter of Dayon G. v. Tina T., 163 A.D.3d 461, 462, 82 N.Y.S.3d 387 [1st Dept. 2018] ; see Matter of Sims v. Boykin, 130 A.D.3d 835, 835–836, 13 N.Y.S.3d 514 [2d Dept. 2015] ; see also Matter of Melinda M. v. Anthony J.H., 143 A.D.3d 617, 618, 41 N.Y.S.3d 15 [1st Dept 2016] ; compare Matter of Rodney W. v. Josephine F., 126 A.D.3d 605, 6 N.Y.S.3d 239 [1st Dept. 2015], lv dismissed 25 N.Y.3d 1187, 16 N.Y.S.3d 46, 37 N.E.3d 103 [2015] ).
Although the mother did not demonstrate a reasonable excuse for her default in the change of custody case, she had a meritorious defense. The children have resided primarily with her, and insufficient evidence was submitted to make an informed change of circumstances determination (see Family Ct. Act § 467[b][ii] ) that serves the best interests of the children (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Matter of Dayon G., 163 A.D.3d at 462–463, 82 N.Y.S.3d 387 ).
Also, the court failed to sua sponte appoint an attorney for the children, which, based upon the insufficient evidence it had to make an informed best interests determination, would have been advisable (see Richard D. v. Wendy P., 47 N.Y.2d 943, 944–945, 419 N.Y.S.2d 949, 393 N.E.2d 1022 [1979] ; compare A.C. v. D.R., 36 A.D.3d 465, 466, 829 N.Y.S.2d 37 [1st Dept. 2007] ).
Under these circumstances, Family Court improvidently exercised its discretion in denying the mother's request to vacate the final custody order. Accordingly, we remit the matter to Family Court, Bronx County, for further proceedings on the father's petition for custody of the children (see Matter of Dayon G. at 463, 82 N.Y.S.3d 387 ), and direct that an attorney for the children be appointed (see Richard D., 47 N.Y.2d at 944–945, 419 N.Y.S.2d 949, 393 N.E.2d 1022 )
We have considered the remaining arguments and find them unavailing.