Wodka v. Wodka

168 A.D.2d 1000, 565 N.Y.S.2d 353, 1990 N.Y. App. Div. LEXIS 16574

Opinion

— Order unanimously reversed on the law with costs and matter remitted to Erie County Family Court for further proceedings, in accordance with the following memorandum: It was an abuse of discretion for the court to award permanent custody of the parties’ child to the father without conducting a factual hearing to determine the fundamental issue of the best interests of the child (Ideman v Ideman, 168 AD2d 1001 [decided herewith]; Mosesku v Mosesku, 108 AD2d 795; Matter of Blake v Blake, 106 AD2d 916). We find no merit to the father’s contention that the court’s summary resolution of the custody issue was proper because the mother willfully refused to obey a court order to return to New York following her relocation with the child to Oregon. Although not necessary to our determination, we note that the court was without authority to compel the mother to return to New York and that she complied with that part of the order that directed the return of the child. In any event, defiance of a court order is but one factor to be considered when determining the relative fitness of the parties and what custody arrangement is in the child’s best interest (see, Friederwitzer v Friederwitzer, 55 NY2d 89, 94; Matter of Nehra v Uhlar, 43 NY2d 242, 251). Accordingly, we reverse the order and remit the matter for a custody hearing to be conducted by a different Judge (see, Matter of Blake v Blake, supra, at 916-917). Physical custody is to be continued with the father pending the determination of permanent custody (see, Mosesku v Mosesku, supra). (Appeal from order of Erie County Family Court, O’Donnell, J. — custody.) Present — Denman, J. P., Boomer, Pine, Davis and Lowery, JJ.