Opinion
2000-11301
Submitted November 25, 2002.
January 13, 2003.
In a custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Richmond County (Porzio, J.), dated November 17, 2000, which, after a hearing, and upon the granting of the mother's motion for judgment as a matter of law, inter alia, granted custody of the subject child to the mother.
Gabriella F. Richman, Hollis Hills, N.Y., for appellant.
Francine Pickett Cohen, Staten Island, N.Y., Law Guardian for the child (no brief filed).
Before: MYRIAM J. ALTMAN, J.P., SONDRA MILLER, THOMAS A. ADAMS, BARRY A. COZIER, JJ.
DECISION ORDER
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Richmond County, for further proceedings consistent herewith.
"As a general rule, it is error as a matter of law to make an order respecting custody based on controverted allegations without having had the benefit of a full hearing" (Biagi v. Biagi, 124 A.D.2d 770, 771; see Matter of Benedict v. Zimmer, 296 A.D.2d 459; Metzger v. Metzger, 240 A.D.2d 642). Further, custody determinations must be made upon consideration of all relevant factors that promote the best interests of the child (see Domestic Relations Law § 70[a]; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89; Metzger v. Metzger, supra).
Here, the Family Court erred in failing to state the facts it deemed essential in its decision to award custody to the mother in contravention of the recommendations contained in reports prepared by the Department of Probation and the Staten Island Family Court Services (see CPLR 4213[b]; Tri-State Sol-Aire Corp. v. United States Fid. Guar. Co., 198 A.D.2d 494, 495), and in failing to hear testimony or receive evidence from either the mother or Law Guardian (see Biagi v. Biagi, supra; Matter of Benedict v. Zimmer, supra; Metzger v. Metzger, supra). Accordingly, the matter is remitted to the Family Court, Richmond County, for a new hearing and determination upon a complete record.
ALTMAN, J.P., S. MILLER, ADAMS and COZIER, JJ., concur.