Opinion
No. 2021-06925 Index No. 1090/19
07-06-2022
Monique A. Chukwuemeka, respondent, v. Anthony U. Chukuemeka, appellant.
Hasapidis Law Offices, South Salem, NY (Annette G. Hasapidis of counsel), for appellant. Jana M. Schopfer, Poughkeepsie, NY, attorney for the child.
Hasapidis Law Offices, South Salem, NY (Annette G. Hasapidis of counsel), for appellant.
Jana M. Schopfer, Poughkeepsie, NY, attorney for the child.
COLLEEN D. DUFFY, J.P. BETSY BARROS REINALDO E. RIVERA ROBERT J. MILLER, JJ.
DECISION & ORDER
In an action for a divorce and ancillary relief, the defendant appeals from an order of the Supreme Court, Dutchess County (Tracy C. MacKenzie, J.), dated August 26, 2021. The order, insofar as appealed from, without a hearing, granted the plaintiff's motion, in effect, for temporary primary residential custody of the parties' child.
ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Dutchess County, for an expedited hearing and a new determination thereafter of the plaintiff's motion, in effect, for temporary primary residential custody of the parties' child; and it is further, ORDERED that pending the hearing and new determination of the plaintiff's motion, temporary primary residential custody of the child shall remain with the plaintiff, with parental access to the defendant pursuant to the terms of the order appealed from.
The parties were married in January 2017 and have one child, born in 2017. In August 2019, the plaintiff commenced this action for a divorce and ancillary relief. In an order dated August 26, 2021, the Supreme Court, among other things, granted the plaintiff's motion, in effect, for temporary primary residential custody of the parties' child, without conducting a hearing. The defendant appeals.
"[C]ustody determinations should '[g]enerally' be made 'only after a full and plenary hearing and inquiry'" (S.L. v J.R., 27 N.Y.3d 558, 563, quoting Obey v Degling, 37 N.Y.2d 768, 770; see Matter of Daclin-Goyatton v Cousins, 172 A.D.3d 1369, 1369). While the general right to a hearing in custody cases is not absolute, where "facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required" (S.L. v J.R., 27 N.Y.3d at 564; see Palazzola v Palazzola, 188 A.D.3d 1081, 1082; Brin v Shady, 179 A.D.3d 760, 762). Moreover, while temporary custody may generally "be properly fixed without a hearing where sufficient facts are shown by uncontroverted affidavits, it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing" (Matter of Wagner v Stevens, 143 A.D.3d 903, 904 [internal quotation marks omitted]; see Matter of Odeh v Assad, 74 A.D.3d 1345, 1347; Carlin v Carlin, 52 A.D.3d 559, 560).
Here, the record demonstrates disputed factual issues so as to require a hearing on the plaintiff's motion, in effect, for temporary primary residential custody of the child (see Matter of Odeh v Assad, 74 A.D.3d at 1347; Carlin v Carlin, 52 A.D.3d at 560; see also Matter of Ledbetter v Singer, 162 A.D.3d 1031, 1032). Accordingly, we reverse the order insofar as appealed from, and remit the matter to the Supreme Court, Dutchess County, for an expedited hearing on the plaintiff's motion, in effect, for temporary primary residential custody of the child, and a new determination thereafter.
DUFFY, J.P., BARROS, RIVERA and MILLER, JJ., concur.