Background - Father (Omar C.) was excluded from the Queens family home by temporary "full stay away" orders of protection after ACS filed five related article 10 petitions alleging he sexually abused a niece; children remained in the mother’s home. - Exclusion orders were entered without a prior hearing; a section 1028 expedited hearing was set and partially convened, but proceedings were interrupted when ACS refiled new petitions and issued another ex parte order excluding the father. - Family Court denied the father’s motion for a prompt hearing under Family Court Act § 1028, treating his challenge as a § 1061 modification request instead; written denial followed (appeal taken). - While the appeal was pending the case was resolved by an ACD/adjournment and the exclusionary order lapsed; father resumed residence with the children, raising mootness issues. - Appellate Division held the appeal was academic but invoked the mootness exception because the issue was likely to recur and implicated substantial, novel questions; it reached the merits and reversed the Family Court. ### Issues | Issue | Plaintiff's Argument | Defendant's Argument | Held | |---|---|---|---| | Whether a parent excluded from the family home by an order of protection in an article 10 case is entitled, upon request, to a prompt § 1028 hearing to challenge that exclusion and seek reunification | Father: Exclusion severs parent‑child relationship functionally equivalent to a physical removal, so § 1028’s expedited three‑court‑day hearing applies. | ACS/Family Ct: § 1028 applies only when a child is physically removed; challenges to stay‑away orders should proceed under discretionary § 1061 modification process. | Court: Exclusion from the home triggers the same due‑process interests as removal; parent is entitled to a § 1028 hearing within three court days on request unless return would present imminent risk. | ### Key Cases Cited Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707 (N.Y. 1980) (mootness and exceptions doctrine) Matter of Lucinda R. (Tabitha L.), 85 A.D.3d 78 (App. Div. 2011) (entitlement to § 1028 hearing turns on disruption of parent’s custody, not child’s physical location) Nicholson v. Scoppetta, 3 N.Y.3d 357 (N.Y. 2004) (article 10 framework and imminent‑risk standard) Gottlieb v. County of Orange, 84 F.3d 511 (2d Cir. 1996) (parental exclusion can implicate § 1028 protections; prompt judicial review required) * Santosky v. Kramer, 455 U.S. 745 (U.S. 1982) (parents’ constitutional liberty interest in custody of their children)