Opinion
2021-05404 Docket Nos. V-3966-20/20A, V-3967-20/20A
09-28-2022
In the Matter of Rushane RANDALL, petitioner-respondent, v. Kimberley DIAZ, appellant, Althea Brown–Randall, respondent-respondent.
Daniel L. Pagano, White Plains, NY, for appellant. Carol Carozza, New Rochelle, NY, for petitioner-respondent. George E. Reed, Jr., White Plains, NY, for respondent-respondent. Lisa F. Colin, White Plains, NY, attorney for the child Rileigh R. Julie A. Cherico, White Plains, NY, attorney for the child Raylynn R.
Daniel L. Pagano, White Plains, NY, for appellant.
Carol Carozza, New Rochelle, NY, for petitioner-respondent.
George E. Reed, Jr., White Plains, NY, for respondent-respondent.
Lisa F. Colin, White Plains, NY, attorney for the child Rileigh R.
Julie A. Cherico, White Plains, NY, attorney for the child Raylynn R.
MARK C. DILLON, J.P., FRANCESCA E. CONNOLLY, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Westchester County (Nilda Morales Horowitz, J.), dated June 21, 2021. The order granted, without a hearing, the father's petition to modify a prior order of the Supreme Court, Westchester County (Susan M. Capeci, J.), dated March 7, 2017, so as, inter alia, to award him sole physical custody of the parties’ children.
ORDERED that the order dated June 21, 2021, is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for a hearing on the father's petition, consideration of new facts, and a new determination thereafter of the father's petition.
The father and the mother have two children in common. Pursuant to an order dated March 7, 2017, entered on consent, the mother, the father, and the paternal grandmother were awarded joint legal custody of the children, with sole physical custody to the paternal grandmother and parental access to the mother and the father. In July 2020, the father filed a petition to modify the order dated March 7, 2017, so as, inter alia, to award him sole physical custody of the children. In an order dated June 21, 2021, the Family Court, without holding a plenary hearing, granted the father's petition and, among other things, awarded the father sole physical custody of the children. The mother appeals.
"Modification of an existing custody arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child" ( Matter of Ross v. Ross, 96 A.D.3d 856, 857, 946 N.Y.S.2d 598 [internal quotation marks omitted]). "Custody determinations ... require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child" ( S.L. v. J.R., 27 N.Y.3d 558, 563, 36 N.Y.S.3d 411, 56 N.E.3d 193 ). Accordingly, "custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’ " ( id. at 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 ; see Brin v. Shady, 179 A.D.3d 760, 761–762, 116 N.Y.S.3d 688 ). "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 Corcoran v. Liebowitz, 189 A.D.3d 1579, 1580, 138 N.Y.S.3d 158 ). "[W]here ... facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" ( S.L. v. J.R., 27 N.Y.3d at 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; see Matter of Fouyalle v. Jackson, 187 A.D.3d 907, 908, 130 N.Y.S.3d 706 ). While "[a] hearing is not necessary where the undisputed facts before the court are sufficient, in and of themselves, to support a modification of custody" ( Loggia v. Verardo, 167 A.D.3d 612, 613, 89 N.Y.S.3d 236 ; see Matter of Alcantara v. Garcia, 180 A.D.3d 1038, 1039, 120 N.Y.S.3d 406 ; Matter of Vitucci v. Radparvar, 173 A.D.3d 1191, 1192, 100 N.Y.S.3d 915 ), "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 ; see Indictor v. Indictor, 192 A.D.3d 1089, 1091, 145 N.Y.S.3d 118 ).
Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of physical custody (see Matter of Merchant v. Caldwell, 198 A.D.3d 782, 784, 156 N.Y.S.3d 254 ; Matter of Corcoran v. Liebowitz, 189 A.D.3d at 1581, 138 N.Y.S.3d 158 ; Matter of Velez v. Alvarez, 129 A.D.3d 1096, 1097, 12 N.Y.S.3d 267 ). Moreover, the Family Court failed to articulate the factors and evidence material to its determination (see Indictor v. Indictor, 192 A.D.3d at 1091, 145 N.Y.S.3d 118 ; Matter of Lemon v. Faison, 150 A.D.3d 1003, 1005, 56 N.Y.S.3d 131 ).
Further, we note that on appeal, significant new developments were brought to this Court's attention by the attorneys for the children, including that the children are residing with the paternal grandmother (see generally Matter of Poit v. Kochem, 134 A.D.3d 722, 723, 20 N.Y.S.3d 585 ).
Accordingly, we remit the matter to the Family Court, Westchester County, for a hearing on the father's petition (see Matter of Corcoran v. Liebowitz, 189 A.D.3d at 1581, 138 N.Y.S.3d 158 ; Matter of Salvi v. Salvi, 178 A.D.3d 1054, 1055, 112 N.Y.S.3d 568 ; Matter of Aleman v. Lansch, 158 A.D.3d 790, 793, 72 N.Y.S.3d 122 ; Matter of Laureano v. Wagner, 149 A.D.3d 745, 746, 49 N.Y.S.3d 630 ; Matter of Chess v. Lichtman, 147 A.D.3d 754, 756, 46 N.Y.S.3d 209 ), consideration of new facts (see Matter of Poit v. Kochem, 134 A.D.3d at 723, 20 N.Y.S.3d 585 ), and a new determination thereafter of the father's petition (see Matter of Corcoran v. Liebowitz, 189 A.D.3d at 1581, 138 N.Y.S.3d 158 ; Matter of Salvi v. Salvi, 178 A.D.3d at 1055, 112 N.Y.S.3d 568 ; Matter of Poit v. Kochem, 134 A.D.3d at 723, 20 N.Y.S.3d 585 ).
DILLON, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur.