Opinion
2022–02011 Docket No. V–242–19
04-19-2023
In the Matter of Melissa BAEZ–DELGADILLO, respondent, v. Ruben MOYA, appellant.
Paul W. Matthews, Staten Island, NY, for appellant. Jeffrey C. Bluth, New York, NY, for respondent. Karen P. Simmons, Brooklyn, NY (Louise Feld and Janet Neustaetter of counsel), attorney for the child.
Paul W. Matthews, Staten Island, NY, for appellant.
Jeffrey C. Bluth, New York, NY, for respondent.
Karen P. Simmons, Brooklyn, NY (Louise Feld and Janet Neustaetter of counsel), attorney for the child.
VALERIE BRATHWAITE NELSON, J.P., LARA J. GENOVESI, BARRY E. WARHIT, HELEN VOUTSINAS, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated March 2, 2022. The order, without a hearing, granted the mother's petition for sole legal and physical custody of the parties’ child, and suspended the father's parental access with the child.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for a hearing and a new determination thereafter of the mother's petition for custody of the parties’ child and the father's parental access; and it is further,
ORDERED that pending the hearing and new determination of the mother's petition for custody and the father's parental access, the provisions of an order of the Supreme Court, Kings County, dated December 16, 2021, shall remain in effect.
The parties, who were never married to each other, are the parents of a child born in 2012. The child has been in the physical custody of the mother since his birth. In September 2019, the mother filed a petition for sole legal and physical custody of the child.
In an order dated December 16, 2021, the Supreme Court awarded the mother temporary custody of the child, awarded the father supervised parental access, and directed the father to enroll in therapy. On the record that day, the court directed the father to enroll in batterer's intervention and alcohol treatment programs. The father failed to comply with the court's directives. In an order dated March 2, 2022, the court, without a hearing, granted the mother's petition for sole legal and physical custody and suspended the father's parental access with the child based on his failure to attend alcohol treatment and therapy. The father appeals. "Custody determinations should generally be made only after a full and plenary hearing and inquiry" ( Matter of Jones v. Rodriguez, 209 A.D.3d 651, 651–652, 174 N.Y.S.3d 874 [alterations and internal quotation marks omitted]; see S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 ). "This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child" ( S.L. v. J.R., 27 N.Y.3d at 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; see Matter of Bendter v. Elikwu, 214 A.D.3d 972, 184 N.Y.S.3d 613, 2023 N.Y. Slip Op. 01670 [2d Dept.] ; Matter of Dysko v. Dysko, 213 A.D.3d 847, 183 N.Y.S.3d 555 ). "A court opting to forgo a plenary hearing must take care to clearly articulate which factors were—or were not—material to its determination, and the evidence supporting its decision" ( S.L. v. J.R., 27 N.Y.3d at 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; Matter of Jones v. Rodriguez, 209 A.D.3d at 652, 174 N.Y.S.3d 874 [internal quotation marks omitted]). "Similarly, visitation determinations should generally be made after a full evidentiary hearing to ascertain the best interests of the child" ( Matter of Izquierdo v. Santiago, 151 A.D.3d 967, 968, 54 N.Y.S.3d 704 ). Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child (see S.L. v. J.R., 27 N.Y.3d at 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; Matter of Bendter v. Elikwu, 214 A.D.3d 972, 184 N.Y.S.3d 613, 2023 N.Y. Slip Op. 01670 ; Matter of Dysko v. Dysko, 213 A.D.3d 847, 183 N.Y.S.3d 555 ). Moreover, the court failed to articulate the factors and evidence material to its determination (see S.L. v. J.R., 27 N.Y.3d at 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; Matter of Randall v. Diaz, 208 A.D.3d 1330, 1331, 174 N.Y.S.3d 605 ).
The Supreme Court also erred in suspending the father's parental access without determining the best interests of the child (see Matter of Dysko v. Dysko, 213 A.D.3d 847, 183 N.Y.S.3d 555 ). Furthermore, the court improperly conditioned the father's future parental access or reapplication for parental access rights upon his compliance with treatment (see Matter of Hardy v. Hardy, 194 A.D.3d 1043, 1045, 149 N.Y.S.3d 483 ; Matter of Smith v. Dawn F.B., 88 A.D.3d 729, 730, 930 N.Y.S.2d 75 ).
Accordingly, the matter must be remitted to the Supreme Court, Kings County, to conduct a hearing and for new determinations thereafter of the mother's custody petition and the father's parental access with the child.
BRATHWAITE NELSON, J.P., GENOVESI, WARHIT and VOUTSINAS, JJ., concur.