Farrelly-Brew v. Moore

221 A.D.2d 1000, 634 N.Y.S.2d 284, 1995 N.Y. App. Div. LEXIS 13502

Opinion

—Order unanimously reversed on the law without costs and matter remitted to Seneca County Family Court for further proceedings in accordance with the following Memorandum: Respondent appeals from an order of Family Court that granted the petition to modify a prior order of custody and to change custody of the parties’ son from respondent to petitioner. On the day of the hearing, respondent’s attorney appeared and requested an adjournment on respondent’s behalf because respondent was unable to secure transportation to the courthouse. Moreover, respondent had written to the court, informing the court that his car had broken down and requesting an adjournment. The court denied the motion for an adjournment. Petitioner’s attorney asked to be allowed to place petitioner’s proof on the record because petitioner’s witnesses were all present and prepared to testify. The court denied that request and entered an order changing custody from respondent to petitioner based solely upon respondent’s failure to appear at the hearing. We reverse.

An award of custody, whether temporary or permanent, must be based on the best interests of the child (Matter of Amy W., 122 AD2d 592; see also, Anstett v Wolcott, 94 AD2d 692). The court should not have granted the petition to change custody from respondent to petitioner without holding a hearing to determine whether petitioner is a suitable parent and whether such a change was in the best interests of the child (see, Daniels v Daniels, 93 AD2d 877, 878). (Appeal from Order of Seneca County Family Court, Falvey, J.—Custody.) Present—Pine, J. P., Lawton, Wesley, Callahan and Doerr, JJ.