Barnes v. Barnes

234 A.D.2d 959, 651 N.Y.S.2d 776, 1996 N.Y. App. Div. LEXIS 13698

Opinion

—Order unanimously reversed on the law without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting permanent custody of the parties’ children to plaintiff without a hearing, based on defendant’s violation of previous court orders. The best interests of children should be determined only after a full hearing (see, Matter of Dorie v Hyde, 227 AD2d 915; Matter of Blake v Blake, 106 AD2d 916), and "defiance of a court order is but one factor to be considered when determining the relative fitness of the parties and what custody arrangement is in the child’s best interests” (Wodka v Wodka, 168 AD2d 1000, 1001; see, Gagliardo v Gagliardo, 151 AD2d 720; see also, Daghir v Daghir, 56 NY2d 938).

We further conclude that the court erred in awarding child support to plaintiff without having net worth statements and other financial data (see, Tacconi v Tacconi, 197 AD2d 929; Falcone v Falcone, 112 AD2d 796, 797). We therefore remit the matter to Supreme Court for a hearing before a different Justice to determine custody and child support (see, Blake v Blake, supra, at 916-917). Pending the hearing, temporary custody of the children shall continue with plaintiff (see, Wodka v Wodka, supra, at 1001; Mosesku v Mosesku, 108 AD2d 795, 796). (Appeal from Order of Supreme Court, Onondaga County, Mordue, J.—Custody.) Present—Green, J. P., Pine, Lawton, Do-err and Boehm, JJ.