Opinion
2012-10-11
In re Ahmed MORA, Petitioner–Respondent, v. Silvia ALATRISTE, Respondent–Appellant.
O'Melveny and Myers, New York (Matthew F. Damm of counsel), for appellant. Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
O'Melveny and Myers, New York (Matthew F. Damm of counsel), for appellant. Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
Order, Family Court, Bronx County (Myrna Martinez–Perez, J.), entered on or about April 14, 2011, which granted petitioner father's petition to modify a prior order of custody and visitation, entered on or about August 22, 2006, and awarded him sole legal and physical custody of the parties' child, with visitation to respondent mother, unanimously reversed, on the law, without costs, the order vacated, and the matter remanded for an evidentiary hearing consistent herewith. Pending the hearing, the child is to be returned to the mother's custody, with visitation to the father, as prescribed in a prior order of custody and visitation, entered on or about March 24, 2009.
The court committed reversible error when it failed to advise the mother of her right to assigned counsel ( seeFamily Ct. Act § 262[a][iii] ). Reversal is also warranted since the court failed to conduct an evidentiary hearing before modifying the prior order of custody and visitation ( see Matter of Santiago v. Halbal, 88 A.D.3d 616, 617, 932 N.Y.S.2d 32 [1st Dept. 2011] ) and did not afford the mother an opportunity to testify, cross-examine, or present evidence ( see Alix A. v. Erika H., 45 A.D.3d 394, 394, 845 N.Y.S.2d 306 [1st Dept. 2007] ). Accordingly, the matter is remanded for a full evidentiary hearing, at which the court should consider the father's petition in light of any subsequent change in circumstances, including his planned relocation to Wisconsin. Prior to the hearing, the mother shall be advised of her rights pursuant to Family Ct. Act § 262(a).