Opinion
2018-06616 Docket Nos. V-3289-16/16C, 16/D, 17G, 17H, V-3290-16/16C, 16D, 17G, 17H
11-13-2019
In the Matter of Ima PINTO, respondent, v. Joao PINTO, appellant.
Joan Iacono, Bronxville, NY, for appellant. BodnarMilone LLP, White Plains, N.Y. (Erik Kristensen of counsel), for respondent. Robin D. Carton, White Plains, NY, attorney for the child L. P. Thea S. Beaver, Mamaroneck, NY, attorney for the child A. P.
Joan Iacono, Bronxville, NY, for appellant.
BodnarMilone LLP, White Plains, N.Y. (Erik Kristensen of counsel), for respondent.
Robin D. Carton, White Plains, NY, attorney for the child L. P.
Thea S. Beaver, Mamaroneck, NY, attorney for the child A. P.
CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order dated May 1, 2018, is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and the matter is remitted to the Family Court, Westchester County, for the completion, with all convenient speed, of the hearing on that branch of the mother's amended petition which was to modify the order of custody dated April 11, 2013, so as to award her sole legal and physical custody of the parties' daughter and permit her to relocate with that child to the State of Washington, and a new determination thereafter of that branch of the mother's amended petition.
The mother commenced this proceeding against the father seeking to modify a prior order of custody so as to award her sole legal and physical custody of the parties' two children and permit her to relocate with both children to the State of Washington. The Family Court commenced a hearing and, prior to the completion of the hearing, in an order dated May 1, 2018, inter alia, modified the prior order so as to award the father sole legal and physical custody of the parties' son and so as to award the mother sole legal and physical custody of the parties' daughter and permit her to relocate with the daughter to the State of Washington. The father appeals.
"The paramount concern in any custody ... determination is the best interests of the child, under the totality of the circumstances" ( Matter of James M. v. Kevin M., 99 A.D.3d 911, 912–913, 952 N.Y.S.2d 257 ; see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526 ; Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Ledbetter v. Singer, 162 A.D.3d 1031, 1031, 80 N.Y.S.3d 142 ). "Since a court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed" ( Matter of Ledbetter v. Singer, 162 A.D.3d at 1031–1032, 80 N.Y.S.3d 142 ; see Minjin Lee v. Jianchuang Xu, 131 A.D.3d 1013, 16 N.Y.S.3d 300 ; Matter of Peek v. Peek, 79 A.D.3d 753, 754, 913 N.Y.S.2d 281 ; see also Matter of Smith v. Anderson, 137 A.D.3d 1505, 1507, 28 N.Y.S.3d 732 ). "This allows the court to ‘fulfill its duty to make an enlightened, objective and independent evaluation of the circumstances’ " ( Matter of Ledbetter v. Singer, 162 A.D.3d at 1032, 80 N.Y.S.3d 142, quoting Minjin Lee v. Jianchuang Xu, 131 A.D.3d at 1014, 16 N.Y.S.3d 300 ; see Mosesku v. Mosesku, 108 A.D.2d 795, 795, 485 N.Y.S.2d 122 ; Matter of Ehrlich v. Ressner, 55 A.D.2d 953, 954, 391 N.Y.S.2d 152 ). " ‘[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing’ " ( Matter of Ledbetter v. Singer, 162 A.D.3d at 1032, 80 N.Y.S.3d 142, quoting Minjin Lee v. Jianchuang Xu, 131 A.D.3d at 1014, 16 N.Y.S.3d 300 ; see Matter of Goldfarb v. Szabo, 130 A.D.3d 728, 728, 13 N.Y.S.3d 247 ; Matter of Mandal v. Mandal, 113 A.D.3d 769, 770, 978 N.Y.S.2d 880 ).
Here, where there were many controverted issues, the Family Court should not have awarded the mother sole custody of the parties' daughter and permitted her to relocate with the daughter prior to completing the hearing. The father had not had the opportunity to present a case and was deprived of the opportunity to cross-examine a key witness called by the mother. Moreover, the court failed to give proper consideration to the effect that the daughter's relocation from New York to the State of Washington would have on the relationship between the siblings, especially given the mother's stated willingness to remain in New York (see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Agyapon v. Zungia, 150 A.D.3d 1226, 1228, 56 N.Y.S.3d 198 ; Matter of Winslow v. Lott, 295 A.D.2d 620, 620, 744 N.Y.S.2d 873 ; Matter of Fialkowski v. Gilroy, 200 A.D.2d 668, 669, 607 N.Y.S.2d 50 ). Accordingly, we remit the matter to the Family Court, Westchester County, for the completion of the hearing on that branch of the mother's amended petition which was to modify the prior order of custody so as to award her sole legal and physical custody of the parties' daughter and permit her to relocate with that child to the State of Washington, and a new determination thereafter of that branch of the mother's amended petition.
CHAMBERS, J.P., MALTESE, LASALLE and CONNOLLY, JJ., concur.