In re Prince Mc.

88 A.D.3d 885, 931 N.Y.2d 261

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 18, 2011
• Status: Published

Opinion

A hearing pursuant to Family Court Act § 1028 is intended to give a parent an opportunity for the prompt return of his or her children pending trial, and a Family Court has no discretion to deny a parent’s application pursuant to section 1028 without a hearing if the statute’s conditions are satisfied (see Matter of Kristina R., 21 AD3d 560, 562-563 [2005]; Matter of Cory M., 307 AD2d 1035, 1036 [2003]; Matter of Melissa H., 62 AD2d 1045 [1978]). Under the circumstances of this case, the Family Court improperly denied the mother’s motion to return the subject children to her custody pursuant to Family Court Act § 1028 without holding a hearing (see Family Ct Act § 1028 [a]; Matter of Cory M., 307 AD2d at 1036).

Contrary to the determination of the Family Court, the mother’s prior waiver of her right to a hearing pursuant to Family Court Act § 1028 (a), which occurred before she made the present motion to return the subject children to her custody pursuant to Family Court Act § 1028, did not warrant the denial of her present motion without a hearing. Family Court Act § 1028 expressly permits the making of an application under that statute at any time during the pendency of the proceedings, notwithstanding a prior waiver of the right to a hearing under that statute (see Family Ct Act § 1028 [a]). Mastro, J.E, Angiolillo, Belen and Lott, JJ., concur.