In the Matter of Evans Noel, Respondent, v Widlyne Melle, Respondent. Ethan N., Nonparty Appellant.

Appeal by the child from an order of the Supreme Court, Kings County (IDV Part) (Esther M. Morgenstern, J.), dated August 23, 2016. The order, without a hearing, granted the father‘s petition alleging that the mother had violated the terms of an existing custody and visitation order by awarding him custody of the child.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County (IDV Part), for further proceedings consistent herewith.

The parties are the parents of the subject child born in 2007. The parties never married. By order on consent dated February 3, 2012 (hereinafter the consent order), the mother was awarded sole legal and physical custody of the child, with visitation to the father. The father filed a violation petition dated March 11, 2016, alleging that the mother had violated the consent order by relocating with the child and by denying him visitation. After three court appearances, the matter was scheduled for a hearing on August 23, 2016. On that date, the Supreme Court denied a request by the mother to appear by telephone, and, without the father having made an application for custody of the child or the benefit of an evidentiary hearing, awarded the father custody of the child. The court also issued a warrant for the mother‘s arrest. The child appeals.