Corcoran v. Liebowitz

204 A.D.3d 910

164 N.Y.S.3d 860 (Mem)

In the Matter of Mariane CORCORAN, respondent,

v.David LIEBOWITZ, appellant.

2020-04521

Docket Nos. V-6876-17, V-10325-19, V-10326-19

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

Submitted—March 31, 2022

April 20, 2022

Helene Migdon Greenberg, Scarsdale, NY, for appellant.

Laura Daniels, Scarsdale, NY, for respondent.

Jessica Bacal, Mount Kisco, NY, attorney for the child Cole L.

Robin D. Carton, White Plains, NY, attorney for the child Grant L.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, CHERYL E. CHAMBERS, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Westchester County (Nilda Morales–Horowitz, J.), dated January 8, 2020. The order, insofar as appealed from, without a hearing, granted that branch of the mother's motion which was to modify the custody provisions of the parties’ judgment of divorce and an order of the same court dated May 9, 2019, so as to award her sole legal custody of the parties’ children, and awarded the father unsupervised parental access with the parties’ youngest child only once per month for a period of up to five hours.

ORDERED that the order dated January 8, 2020, is modified, on the law, by deleting the provision thereof granting that branch of the mother's motion which was to modify the custody provisions of the parties’ judgment of divorce and an order of the same court dated May 9, 2019, so as to award her sole legal custody of the subject children; as so modified, the order dated January 8, 2020, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for a hearing on that branch of the mother's motion before a different Judge and a new determination thereafter; and it is further,

ORDERED that pending the hearing and new determination, the provisions of the order dated January 8, 2020, shall remain in effect.

The parties are the parents of two children. Pursuant to a stipulation of settlement which was incorporated but not merged into the parties’ judgment of divorce dated January 13, 2016, the parties had joint legal and physical custody of the children. In an order dated May 9, 2019, the Family Court, inter alia, granted the mother's petition to modify the custody provisions of the judgment of divorce so as to award her sole physical custody of the children. Thereafter, the mother moved, among other things, to modify the custody provisions of the judgment of divorce and the order dated May 9, 2019, so as to award her sole legal custody of the children. In an order dated January 8, 2020, the court, inter alia, without a hearing, granted that branch of the mother's motion which was to award her sole legal custody of the children, and awarded the father unsupervised parental access with the parties’ youngest child once per month for a period of up to five hours. 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" ( Matter of Merchant v. Caldwell, 198 A.D.3d 782, 783, 156 N.Y.S.3d 254 ; see Katsoris v. Katsoris, 178 A.D.3d 794, 796, 116 N.Y.S.3d 100 ). Although "[a] parent seeking a change of custody is not automatically entitled to a hearing" ( Gentile v. Gentile, 149 A.D.3d 916, 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 ). "[W]here ‘facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,’ a hearing is required" ( Palazzola v. Palazzola, 188 A.D.3d 1081, 1082, 132 N.Y.S.3d 675, quoting S.L. v. J.R., 27 N.Y.3d at 564, 36 N.Y.S.3d 411, 56 N.E.3d 193 ).

Here, the record does not demonstrate the absence of unresolved factual issues so as to render a...