Aquino v. Antongiorgi

92 A.D.3d 780, 938 N.Y.2d 460

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 14, 2012
• Status: Published

Opinion

Contrary to the mother’s contention, the Family Court’s determination, in effect, that it would not be in the best interests of the children for it to modify a prior order awarding the father sole custody of the parties’ children so as to award her sole custody, has a sound and substantial basis in the record and, accordingly, will not be disturbed (see Matter of Arduino v Ayuso, 70 AD3d 682 [2010]; Matter of Mohabir v Singh, 63 AD3d 1159, 1159 [2009]; Matter of Perez v Martinez, 52 AD3d 518, 519 [2008]). Although, as a general rule, determinations regarding custody and related matters should be made after a full evidentiary hearing (see e.g. Matter of Brooks v Brooks, 255 AD2d 382, 383 [1998]), here, the mother consented to the Family Court’s so-called “mini-hearing” procedure, thus waiving her right to a full evidentiary hearing (see Matter of Goldman v Goldman, 201 AD2d 860, 862 [1994]; cf. Matter of Richmond v Perez, 38 AD3d 782, 783-784 [2007]). In any event, a full evidentiary hearing was not necessary, since the Family Court possessed sufficient information to render an informed decision consistent with the best interests of the children (see Matter of Peluso v Kasun, 78 AD3d 950, 950-951 [2010]; Matter of Hom v Zullo, 6 AD3d 536 [2004]; see also Matter of Weinschneider v Weinschneider, 73 AD3d 1194, 1195 [2010]).

We agree, however, with the mother’s contention that the Family Court erred in directing that “[n]o petition requesting additional visitation by the mother shall be accepted by the court until the [attorney for the children] has approved of such a request” (see Matter of Mackenzie M. v Mary U., 38 AD3d 1249, 1250 [2007]; Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [1996]). We note that the alternatives to that provision proposed by the father and the attorney for the children in their respective briefs also would be improper (see generally Matter of Williams v O’Toole, 4 AD3d 371, 372 [2004]; Matter of Adam H., 195 AD2d 1074, 1075 [1993]; cf. Vogelgesang v Vogelgesang, 71 AD3d 1132, 1134 [2010]). Mastro, A.EJ, Angiolillo, Eng and Cohen, JJ., concur.