Opinion
No. 2021-08765 Docket No. V-442-19/20B
03-15-2023
In the Matter of Nicole McCabe, appellant, v. Steven Truglio, respondent.
Geoffrey E. Chanin, Goshen, NY, for appellant. Most & Schneid, P.C., White Plains, NY (Adam W. Schneid of counsel), for respondent. Donald M. Card, Jr., Shelter Island, NY, attorney for the child.
Geoffrey E. Chanin, Goshen, NY, for appellant.
Most & Schneid, P.C., White Plains, NY (Adam W. Schneid of counsel), for respondent.
Donald M. Card, Jr., Shelter Island, NY, attorney for the child.
FRANCESCA E. CONNOLLY, J.P., CHERYL E. CHAMBERS, PAUL WOOTEN, BARRY E. WARHIT, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Orange County (Christine P. Krahulik, J.), dated November 5, 2021. The order, without a hearing, dismissed the mother's petition to modify the parental access provisions of an order of the same court dated June 20, 2019.
ORDERED that the order dated November 5, 2021, is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Orange County, for a hearing on the mother's petition and for a new determination thereafter of the petition.
The parties are the parents of the subject child, who was born in 2009. In an order dated June 20, 2019, upon the parties' consent, the mother was awarded, inter alia, supervised parental access with the child. In September 2020, the mother filed a petition to modify the parental access provisions of the June 20, 2019 order so as to, inter alia, allow her unsupervised parental access with the child. By order dated November 5, 2021, the Family Court, without a hearing, dismissed the mother's petition, and the mother appeals.
Custody and parental access 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 [internal quotation marks omitted]; see Matter of Fouyalle v Jackson, 187 A.D.3d 907). "While the general right to a hearing in [parental access] cases is not absolute, where 'facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute,' a hearing is required" (Palazzola v Palazzola, 188 A.D.3d 1081, 1082, quoting S.L. v J.R., 27 N.Y.3d at 564; see Matter of Cardona v McNeill, 199 A.D.3d 1002).
Here, the record demonstrates disputed factual issues so as to require a hearing on the issue of the mother's parental access (see S.L. v J.R., 27 N.Y.3d at 562; Matter of Corcoran v Liebowitz, 189 A.D.3d 1579, 1581). Further, the Family Court, in making its determination without a hearing, relied upon the report of the forensic evaluator, which had not been admitted into evidence, and the evaluator's opinions and credibility were untested by the parties (see Matter of Corcoran v Liebowitz, 189 A.D.3d at 1581; Matter of Migliore v Santiago, 165 A.D.3d 942, 944). Accordingly, the order dated November 5, 2021, must be reversed and the matter remitted to the Family Court, Orange County, for a hearing on the mother's petition and a new determination thereafter of the petition.
CONNOLLY, J.P., CHAMBERS, WOOTEN and WARHIT, JJ., concur.