Jones v. Scaldini

238 A.D.2d 422, 656 N.Y.S.2d 370, 1997 N.Y. App. Div. LEXIS 3866

Opinion

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals, by permission, from an order of the Family Court, Kings County (Schechter, J.), dated December 16, 1996, which granted the mother’s application for an award of temporary custody of the parties’ son.

Ordered that the order is reversed, on the law, with costs, and the mother’s application for an award of temporary custody is denied.

The father has had sole custody of the parties’ son since 1989. Based on the son’s expressed desire to live with her, the mother commenced this proceeding to change custody. The Family Court granted the mother temporary custody without holding a hearing or stating its reasons for changing custody. This Court granted a stay pending the hearing and determination of the appeal.

The Family Court improvidently exercised its discretion in temporarily changing custody to the mother without conducting a hearing (see, Senior v Senior, 152 AD2d 784; Savas v Savas, 127 AD2d 578; Bellinger v Bellinger, 109 AD2d 1104; Richman v Richman, 104 AD2d 934). Concededly, the father is a fit parent and the son has a good relationship with both parents. The record reveals no apparent need or reason to change custody without conducting an inquiry as to whether such a change is in the son’s best interests. Altman, J. P., Friedmann, Goldstein and Luciano, JJ., concur.