Sales v. Gisendaner

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

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2000
• Docket: Appeal No. 2
• Status: Published

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.