Opinion
2020–05769 Docket No. V–11119–12/19C
10-13-2021
In the Matter of Ronald S. MERCHANT, Jr., appellant, v. Cameron L. CALDWELL, respondent.
Sonnenfeld & Richman LLP, New York, N.Y. (Judith R. Richman and Brad Evan Serlen of counsel), for appellant. Advocate LLP, New York, N.Y. (Jason A. Advocate of counsel), for respondent. Jennifer Marshall, Brooklyn, NY, attorney for the child.
Sonnenfeld & Richman LLP, New York, N.Y. (Judith R. Richman and Brad Evan Serlen of counsel), for appellant.
Advocate LLP, New York, N.Y. (Jason A. Advocate of counsel), for respondent.
Jennifer Marshall, Brooklyn, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., ROBERT J. MILLER, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of dismissal of the Family Court, Kings County (Judith D. Waksberg, J.), dated June 29, 2020. The order of dismissal, upon an order of the same court also dated June 29, 2020, granting the mother's motion to dismiss the father's petition to modify a prior order of custody and visitation, dismissed the petition. The notice of appeal from the order is deemed to be a notice of appeal from the order of dismissal (see CPLR 5512[a] ).
ORDERED that the order of dismissal is reversed, on the law, without costs or disbursements, the order dated June 29, 2020, is vacated, and the matter is remitted to the Family Court, Kings County, for forensic evaluations of the parties and the subject child, and an evidentiary hearing on the father's petition and a new determination thereafter of the father's petition.
The parties were never married, and have one child in common. On October 1, 2013, they entered into a so-ordered stipulation of settlement pursuant to which the mother was awarded sole physical custody of the child and the parties shared joint legal custody of the child.
On July 30, 2019, the father filed a petition seeking to modify the stipulation of settlement so as to award him sole legal custody of the child, to increase his parental access to the child, and to appoint an independent forensic evaluator to conduct an evaluation of the parties and the child. On or about February 21, 2020, the mother moved to dismiss the father's petition. On March 5, 2020, the attorney for the child submitted an affirmation, contending that the Family Court should hold a hearing on the father's petition since the father alleged a sufficient change in circumstances, and there were factual discrepancies in the parties’ affidavits.
On June 29, 2020, the Family Court issued an order dismissing the father's petition, since the father failed to establish a substantial change in circumstances and failed to make an evidentiary showing requiring a hearing. The father appeals.
In order to modify an existing court-sanctioned custody or parental access agreement, there must be a showing that there was a sufficient change in circumstances so that modification is required to protect the best interests of the child (see Matter of Williams v. Jenkins, 167 A.D.3d 758, 760, 90 N.Y.S.3d 81 ; Henrie v. Henrie, 163 A.D.3d 927, 928, 79 N.Y.S.3d 691 ; Matter of Miller v. Shaw, 160 A.D.3d 743, 744, 74 N.Y.S.3d 70 ; Gentile v. Gentile, 149 A.D.3d 916, 918, 52 N.Y.S.3d 420 ). Although "[a] parent seeking a change of custody is not automatically entitled to a hearing" ( Gentile v. Gentile, 149 A.D.3d at 918, 52 N.Y.S.3d 420 ), "custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ " ( S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193, quoting Obey v. Degling, 37 N.Y.2d 768, 770, 375 N.Y.S.2d 91, 337 N.E.2d 601 ). "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 ). Accordingly, "[w]hen the allegations of fact in a petition to change custody are controverted, the court must, as a general rule, hold a full hearing" ( Matter of Laureano v. Wagner, 149 A.D.3d 745, 745, 49 N.Y.S.3d 630 [internal quotation marks omitted]).
Here, the record does not demonstrate the absence of unresolved factual issues so as to render a hearing unnecessary (see S.L. v. J.R., 27 N.Y.3d at 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; Brin v. Shady, 179 A.D.3d 760, 762, 116 N.Y.S.3d 688 ; Katsoris v. Katsoris, 178 A.D.3d 794, 796–797, 116 N.Y.S.3d 100 ; Matter of Williams v. Jenkins, 167 A.D.3d at 760, 90 N.Y.S.3d 81 ; cf. Matter of Long v. Donoghue, 167 A.D.3d 614, 89 N.Y.S.3d 235 ). Rather, the record shows that there were disputed factual issues regarding the child's best interests such that a hearing on modification of joint legal custody and parental access was required (see S.L. v. J.R., 27 N.Y.3d at 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; Katsoris v. Katsoris, 178 A.D.3d at 796–797, 116 N.Y.S.3d 100 ).
Accordingly, we remit the matter to the Family Court, Kings County, for a hearing on the father's petition to modify the legal custody and parental access provisions of the stipulation of settlement. The hearing and determination should be preceded by forensic evaluations of the parties and the child (see Matter of Velez v. Alvarez, 129 A.D.3d 1096, 1097, 12 N.Y.S.3d 267 ).
The father's remaining contention is without merit
MASTRO, J.P., MILLER, CONNOLLY and BRATHWAITE NELSON, JJ., concur.