Opinion
May 10, 2000
Appeal from Order of Erie County Family Court, Dillon, J. — Custody.
Before: Pigott, Jr., P.J., Pine, Scudder and Kehoe, JJ.
Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum:
"An award of custody, whether temporary or permanent, must be based on the best interests of the child" ( Matter of Farrelly-Brew v. Moore, 221 A.D.2d 1000). It is well established that determinations affecting custody should be made following a full evidentiary hearing, not on the basis of conflicting allegations ( see, Matter of Naughton-General v. Naughton, 242 A.D.2d 937, 938; Van Etten v. Van Etten, 207 A.D.2d 992; see also, Matter of Smith v. Patrowski, 226 A.D.2d 1073). Family Court was justifiably concerned about the injuries that the child suffered while in the care of respondent as well as the subsequent failure of respondent to exercise her supervised visitation rights with the child after petitioner was awarded temporary custody. The court should not have changed custody of the parties' child from respondent to petitioner, however, without conducting a hearing to determine whether petitioner is a suitable parent and whether such change was in the best interests of the child ( see, Matter of Farrelly-Brew v. Moore, supra; see also, Matter of Dorie v. Hyde, 227 A.D.2d 915). Thus, we reverse the order and remit the matter to Erie County Family Court for a hearing and a new determination with findings of fact. Petitioner shall retain custody of the child pending the new determination, and visitation shall be in accordance with the visitation provided in the order on appeal ( see, Matter of Klang v. Klang, 235 A.D.2d 476).
In addition, we note that the record is silent with respect to whether counsel gave their clients advance notice of their motions to withdraw on the day scheduled for trial. Although this issue is not raised on appeal, we express our concern that parents' rights to representation be protected ( see, Matter of Meko M., 272 A.D.2d 953 [decided herewith]).