Dente v. Dente

225 A.D.2d 544, 638 N.Y.2d 757, 638 N.Y.S.2d 757, 1996 N.Y. App. Div. LEXIS 1835

Opinion

Because the father had received custody of the parties’ child as the result of a custody award obtained in a judgment of divorce entered upon the default of the mother, it was error for the court to render its decision on the mother’s motion for modification without determining the best interests of the child, and instead limiting its determination to a finding that custody should continue in the father because the mother had failed to establish that changed circumstances warranted modification of custody (see, Matter of Noel v Derrick, 71 AD2d 704).

The record is not sufficiently complete for this Court to make its own findings with respect to the best interests of the child. Therefore, this matter must be remitted to the Family Court for a best interests hearing and a new determination. Balletta, J. P., Joy, Krausman and Florio, JJ., concur.