Veronica C. v. Administration for Children's Services

84 A.D.3d 1370, 923 N.Y.S.2d 893

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 31, 2011
• Status: Published

Opinion

In a child custody proceeding pursuant to Family Court Act article 6, the maternal grandmother appeals from an order of the Family Court, Kings County (Lerner, Ct. Atty. Ref.), dated June 11, 2009, which, without a hearing, dismissed her petition to modify an order of custody dated April 7, 2009, with respect to the child Kenneth C., and directed that no further petitions for modification of the order of custody dated April 7, 2009, would be accepted for filing without leave of court.

Ordered that the order dated June 11, 2009, is reversed, on the law, with costs, the petition is reinstated, and the matter is remitted to the Family Court, Kings County, for further proceedings in accordance herewith, before a different Court Attorney Referee.

As the Administration for Children’s Services correctly concedes, under the circumstances of this case, the Family Court improperly dismissed, without a hearing, the maternal grandmother’s petition to modify an order of custody dated April 7, 2009, with respect to the child Kenneth C. (see Matter of Gurewich v Gurewich, 58 AD3d 628 [2009]). Accordingly, the order dated June 11, 2009, must be reversed, the maternal grandmother’s petition reinstated, and the matter remitted to the Family Court, Kings County, for further proceedings on the petition. In light of certain remarks made by the Court Attorney Referee, the proceedings should be held before a different Court Attorney Referee.

We note that the maternal grandmother’s request for legal assistance to amend her petition is not properly before this Court and would be properly made before the Family Court. Skelos, J.E, Dickerson, Hall and Sgroi, JJ., concur.