Kenneth M. v. Monique M.

48 A.D.3d 1174, 851 N.Y.S.2d 315

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 1, 2008
• Status: Published

Opinion

Appeal from an order of the Family Court, Erie County (Margaret O. Szczur, J.), entered December 11, 2006. The order granted the petition and modified a prior order dated September 27, 2005.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for a hearing on the petition.

Memorandum: Respondent mother appeals from an order granting the petition seeking modification of an order setting forth a visitation schedule with her daughter. We agree with the mother that Family Court erred in entering a “default finding” on the petition based on her failure to appear at the hearing. The mother’s counsel was present and was given the opportunity to participate in the hearing (see Matter of David A. A. v Maryann A., 41 AD3d 1300 [2007]).

We further agree with the mother that the court erred in modifying her visitation schedule without conducting a hearing. “Determinations affecting custody and visitation should be made following a full evidentiary hearing, not on the basis of conflicting allegations” (Matter of Naughton-General v Naughton, 242 AD2d 937, 938 [1997]; see Matter of Smith v Patrowski, 226 AD2d 1073 [1996]). Inasmuch as the court failed to conduct a hearing, we are unable to determine on the record before us whether modification of the mother’s visitation schedule was warranted. Present—Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.