Smith v. Brown

May 10, 2000
Versions:272 A.D.2d 993
708 N.Y.S.2d 676
2000 N.Y. App. Div. LEXIS 5210

—Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: “An award of custody, whether temporary or permanent, must be based on the best interests of the child” (Matter of Farrelly-Brew v Moore, 221 AD2d 1000). It is well established that determinations affecting custody should be made following a full evidentiary hearing, not on the basis of conflicting allegations (see, Matter of Naughton-General v Naughton, 242 AD2d 937, 938; Van Etten v Van Etten, 207 AD2d 992; see also, Matter of Smith v Patrowski, 226 AD2d 1073). Family Court was justifiably concerned about the injuries that the child suffered while in the care of respondent as well as the subsequent failure of re*994spondent to exercise her supervised visitation rights with the child after petitioner was awarded temporary custody. The court should not have changed custody of the parties’ child from respondent to petitioner, however, without conducting a hearing to determine whether petitioner is a suitable parent and whether such change was in the best interests of the child (see, Matter of Farrelly-Brew v Moore, supra; see also, Matter of Done v Hyde, 227 AD2d 915). Thus, we reverse the order and remit the matter to Erie County Family Court for a hearing and a new determination with findings of fact. Petitioner shall retain custody of the child pending the new determination, and visitation shall be in accordance with the visitation provided in the order on appeal (see, Matter of Klang v Klang, 235 AD2d 476).

In addition, we note that the record is silent with respect to whether counsel gave their clients advance notice of their motions to withdraw on the day scheduled for trial. Although this issue is not raised on appeal, we express our concern that parents’ rights to representation be protected (see, Matter of Meko M., 272 AD2d 953 [decided herewith]). (Appeal from Order of Erie County Family Court, Dillon, J. — Custody.) Present— Pigott, Jr., P. J., Pine, Scudder and Kehoe, JJ.