Salvi v. Salvi

178 A.D.3d 1054

112 N.Y.S.3d 568 (Mem)

In the Matter of John SALVI, Respondent,

v.Maria SALVI, Appellant.

2018–12725

Docket No. V–1140–16/16B

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

Submitted—October 8, 2019

December 24, 2019

John F. De Chiaro, Larchmont, NY, for appellant.

Steven P. Forbes, Jamaica, NY, for respondent.

Gloria Marchetti–Bruck, White Plains, NY, attorney for the child.

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, 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 September 25, 2018. The order, insofar as appealed from, without a hearing, granted the father's petition to modify a prior order of custody and parental access dated October 4, 2016, and awarded him sole legal custody of the parties' child.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the matter is remitted to the Family Court, Westchester County, to expeditiously conduct a hearing and for a new determination thereafter of the father's petition; and it is further,

ORDERED that pending a hearing and new determination of the petition, the parties shall abide by the parental access schedule set forth in the order dated September 25, 2018, and any additional parental access as ordered by the Family Court.

By "Agreed Order in Suit Affecting the Parent–Child Relationship" (hereinafter the Texas custody order) dated October 4, 2016, which was so-ordered by the District Court, Harris County, Texas, the parties agreed to be appointed "Joint Managing Conservators" of their child, and the father was granted the exclusive right to designate the child's primary residence within Westchester County, New York, or any contiguous county.

Less than two months later, on November 16, 2016, the father filed a petition in the Family Court, Westchester County, to modify the Texas custody order, inter alia, so as to award him sole custody of the child. The mother opposed the petition. Over 21 months, the parties made eight formal appearances in Family Court in connection with the father's petition. The court never conducted an evidentiary hearing on the father's petition, with the exception of taking the partial testimony of one nonparty witness. By order dated September 25, 2018, over the mother's objection and request for an evidentiary hearing, the court, inter alia, granted the father's petition to the extent of awarding him sole legal custody of the child. The mother appeals. We reverse.

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...