Opinion
CAF 00-02580
February 1, 2002.
Appeal from an order of Family Court, Cattaraugus County (Kelly, J.H.O.), entered August 2, 2000, which awarded the parties joint custody of their son, with primary physical custody to respondent.
LISA A. SADINSKY, ROCHESTER, FOR PETITIONER-APPELLANT.
PRESENT: WISNER, J.P., HURLBUTT, KEHOE, BURNS, AND LAWTON, JJ.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Family Court, Cattaraugus County, for further proceedings in accordance with the following Memorandum:
Although Family Court erred in entering a temporary order modifying the existing custody arrangement of the parties with respect to their son without first conducting an evidentiary hearing ( see, Matter of Smith v. Brown, 272 A.D.2d 993, 994; Matter of Smith v. Patrowski, 226 A.D.2d 1073, 1073-1074; Matter of Farrelly-Brew v. Moore, 221 A.D.2d 1000), reversal on that ground is not required because an evidentiary hearing subsequently was conducted ( see, Matter of Smith v. Patrowski, supra, at 1074). At that hearing, conducted before a Judicial Hearing Officer upon the consent of the parties, the parties stipulated to joint custody of their son, with primary placement with respondent and visitation with petitioner.
We agree with petitioner, however, that the court erred in settling the order purporting to reflect the parties' stipulation after a proceeding at which petitioner's attorney was not present ( see, Family Ct Act § 262 [a] [v]; Matter of Mahoney v. Doring, 256 A.D.2d 1112, 1113; see generally, Matter of Sasha S., 256 A.D.2d 468, 469). We therefore reverse the order and remit the matter to Family Court, Cattaraugus County, for further proceedings to settle the order.