Opinion
9782
07-02-2019
In re SANDRA Y., Petitioner, v. JAHI J.Y., Respondent–Respondent. Ruby Y., et al., Nonparty Appellants.
Carol L. Kahn, New York, for Jahi Y., respondent. Tennille M. Tatum-Evans, New York, for Sandra Y., respondent. Karen Freedman, Lawyers for Children Inc., New York (Shirim Nothenberg of counsel), attorney for the children, appellants.
Carol L. Kahn, New York, for Jahi Y., respondent.
Tennille M. Tatum-Evans, New York, for Sandra Y., respondent.
Karen Freedman, Lawyers for Children Inc., New York (Shirim Nothenberg of counsel), attorney for the children, appellants.
Richter, J.P., Tom, Gesmer, Kern, Moulton, JJ.
Order, Family Court, New York County (J. Machelle Sweeting, J.), entered on or about November 1, 2018, which granted respondent father's application for temporary custody of the subject children, unanimously reversed, on the law, without costs, and the matter remanded for a hearing.
Modification of custody or visitation, even on a temporary basis, requires a hearing, absent a showing of an emergency (see Matter of Kenneth J. v. Lesley B. , 165 A.D.3d 439, 439-440, 85 N.Y.S.3d 42 [1st Dept. 2018] ; Matter of Lela G. v. Shoshanah B. , 151 A.D.3d 593, 594, 54 N.Y.S.3d 16 [1st Dept. 2017] ). The parties agree that a hearing should have been conducted here.
The court's determination to grant temporary custody to the father was based exclusively on school records and allegations of educational neglect, which the parties were not given an opportunity to challenge by way of a hearing. Additionally, the court granted temporary custody to the father, over the objection of the children's attorney that was based on statements and observations in a court-ordered investigation (COI) report regarding the father's violent nature and possible drug abuse. The court failed to articulate an emergency situation that warranted the imposition of a new custody order without a hearing, and the allegations of educational neglect did not outweigh the concerning statements in the COI report, which the court did not fully review.