Sales v. Gisendaner

272 A.D.2d 997, 707 N.Y.S.2d 562

Opinion

—Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: In this child custody dispute between a mother and grandmother, Family Court erred in granting the grandmother’s petition without a hearing on the ground that the mother had defaulted in appearing in response thereto. A party who is represented at a scheduled court appearance by an attorney has not failed to appear (see, Matter of Cleveland W., 256 AD2d 1151, 1151-1152; Matter of Robert F, 200 AD2d 899; Matter of Cecelia A., 199 AD2d 582; cf., Matter of Black v Black, 84 AD2d 922). In any event, the court erred in granting the petition summarily (see, Obey v Degling, 37 NY2d 768, 769-770; Matter of Van Etten v Van Etten, 207 AD2d 992). A parent’s right to be heard on a matter of child custody is fundamental and “not to be disregarded absent a convincing showing of waiver” (Matter of Kendra M., 175 AD2d 657, 658; see, Matter of Cleveland W., supra, at 1151). Moreover, transfer of custody from a parent to a nonparent requires a showing of extraordinary circumstances justifying the court’s intervention, followed by a showing that an award of custody to the nonparent is in the child’s best interests (see, Matter of Bennett v Jeffi'eys, 40 NY2d 543, 545-549). Those issues may not be determined summarily (see, Matter of Stefanik v Roberts, 266 AD2d 758, citing D’Entremont v DEntremont, 254 AD2d 576, 576-577). Consequently, we reverse the order and remit the matter to Erie County Family Court for further proceedings on the petition before a different Judge. (Appeal from Order of Erie County Family Court, Dillon, J. — Custody.) Present — Pigott, Jr., P. J., Pine, Scudder and Kehoe, JJ.