Bendter v. Elikwu

184 N.Y.S.3d 613 (Mem)

In the Matter of Urainia BENDTER, respondent,

v.Ifechukwude ELIKWU, appellant.

2021-08593

Docket No. V-523-19

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 3, 2023

March 29, 2023

Tammi D. Pere, Jamaica, NY, for appellant.

Mark Diamond, Pound Ridge, NY, for respondent.

Karen P. Simmons, Brooklyn, NY (Janet Neustaetter of counsel), attorney for the child.

HECTOR D. LASALLE, P.J., BETSY BARROS, VALERIE BRATHWAITE NELSON, ROBERT J. MILLER, 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 November 9, 2021. The order, insofar as appealed from, without a hearing, granted the mother's petition for custody of the parties’ child.

ORDERED that the order is reversed insofar as appealed from, 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 it is further,

ORDERED that pending the hearing and new determination of the mother's petition for custody, the provisions of the order dated November 9, 2021, shall remain in effect.

In 2019, the mother filed a petition for custody of the parties’ child. In an order dated November 9, 2021, the Supreme Court, inter alia, without a hearing, granted the mother's petition and awarded her custody. The father appeals.

"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 Matter of Randall v. Diaz, 208 A.D.3d 1330, 1331, 174 N.Y.S.3d 605 ). "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 Randall v. Diaz, 208 A.D.3d at 1331, 174 N.Y.S.3d 605 ). "[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 ).

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 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 ; Matter of...