Opinion
2014-01-22
In the Matter of Krishnendu MANDAL, respondent, v. Reshmi MANDAL, appellant.
Amy Mulzer, Brooklyn, N.Y., for appellant. Teresita Morales, Jamaica, N.Y., attorney for the children.
Amy Mulzer, Brooklyn, N.Y., for appellant. Teresita Morales, Jamaica, N.Y., attorney for the children.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Queens County (McGowan, J.), dated November 19, 2012, as, without a hearing, awarded custody of the subject children to the father.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for an evidentiary hearing to be held with all convenient speed on the issue of custody and a new determination of the petition thereafter; and it is further,
ORDERED that pending the hearing and new determination, the subject children shall remain in the custody of the father.
An award of custody must be based upon the best interests of the child, and neither parent has a prima facie right to custody of the child ( see Matter of Zaratzian v. Abadir, 105 A.D.3d 1054, 963 N.Y.S.2d 706; Matter of Peek v. Peek, 79 A.D.3d 753, 753–754, 913 N.Y.S.2d 281). “Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed” ( Matter of Peek v. Peek, 79 A.D.3d at 754, 913 N.Y.S.2d 281 [internal citations omitted]; see Matter of Labella v. Murray, 108 A.D.3d 547, 968 N.Y.S.2d 192; Matter of Perez v. Estevez, 82 A.D.3d 1106, 919 N.Y.S.2d 349). Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing ( see Matter of Labella v. Murray, 108 A.D.3d at 547, 968 N.Y.S.2d 192; Matter of Swinson v. Brewington, 84 A.D.3d 1251, 1253, 925 N.Y.S.2d 96; Matter of Perez v. Estevez, 82 A.D.3d at 1106, 919 N.Y.S.2d 349; Matter of Peek v. Peek, 79 A.D.3d at 754, 913 N.Y.S.2d 281). It is not necessary, however to conduct such a hearing “where the court already possesses sufficient relevant information to render an informed determination in the child's best interest” ( Matter of Labella v. Murray, 108 A.D.3d at 548, 968 N.Y.S.2d 192 [internal quotation marks omitted]; see Matter of Perez v. Estevez, 82 A.D.3d at 1106, 919 N.Y.S.2d 349).
Under the circumstances presented here, it cannot be concluded that the Family Court possessed sufficient information to render an informed determination as to the best interests of the subject children ( see Matter of Labella v. Murray, 108 A.D.3d at 548, 968 N.Y.S.2d 192; Matter of Savoca v. Bellofatto, 104 A.D.3d 695, 696, 960 N.Y.S.2d 212; Matter of Perez v. Estevez, 82 A.D.3d at 1106, 919 N.Y.S.2d 349; Matter of Peek v. Peek, 79 A.D.3d at 754, 913 N.Y.S.2d 281). In addition, in issuing its determination, the Family Court failed to make “ ‘specific findings of fact with respect to the issue of custody,’ ” as it is required to do ( Matter of Savoca v. Bellofatto, 104 A.D.3d at 696, 960 N.Y.S.2d 212, quoting Audubon v. Audubon, 138 A.D.2d 658, 659, 526 N.Y.S.2d 474; see Mauter v. Mauter, 309 A.D.2d 737, 738, 765 N.Y.S.2d 376).
Accordingly, the matter must be remitted to the Family Court, Queens County, for an evidentiary hearing on the issue of custody and a new determination of the petition thereafter ( see Matter of Labella v. Murray, 108 A.D.3d at 548, 968 N.Y.S.2d 192; Matter of Perez v. Estevez, 82 A.D.3d at 1106, 919 N.Y.S.2d 349). SKELOS, J.P., LOTT, COHEN and HINDS–RADIX, JJ., concur.