Opinion
2019–13470 2019–13471 Docket Nos. V–6706–19, V–27002–19
10-28-2020
In the Matter of Kevin STREET, Appellant, v. Alexis PALMER, Respondent. (Proceeding No. 1) In the Matter of Alexis Palmer, Respondent, v. Kevin Street, Appellant. (Proceeding No. 2)
Yasmin Daley Duncan, Brooklyn, NY, for appellant. Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent. Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter of counsel), attorney for the child.
Yasmin Daley Duncan, Brooklyn, NY, for appellant.
Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter of counsel), attorney for the child.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, HECTOR D. LASALLE, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the father appeals, by permission, from two orders of the Family Court, Kings County (Rupert V. Barry, J.), both dated November 21, 2019. The orders, without a hearing, granted the mother's motion, in effect, to modify a temporary order of custody of the same court dated November 4, 2019, so as to award her temporary custody of the parties' child. By decision and order on motion dated January 6, 2020, this Court stayed enforcement of the orders dated November 21, 2019, pending hearing and determination of the appeals or issuance of a dispositional order in the underlying proceedings, whichever occurs first.
ORDERED that the orders dated November 21, 2019, are reversed, on the law and the facts, without costs or disbursements, the mother's motion, in effect, to modify the temporary order of custody dated November 4, 2019, so as to award her temporary custody of the parties' child is denied, and the matter is remitted to the Family Court, Kings County, for a determination of the petitions with all convenient speed.
The parties, who were never married, are the parents of a child born in October 2009. In March 2019, the father filed a petition seeking, inter alia, sole custody of the child. Subsequently, the mother filed a petition for sole custody of the child. During the pendency of the proceedings, the Family Court, in an order dated November 4, 2019, awarded temporary custody of the child to the father. Thereafter, in two orders dated November 21, 2019, the court granted the mother's motion, in effect, to modify the temporary order of custody so as to award her temporary custody of the child. 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 Ledbetter v. Singer, 162 A.D.3d 1031, 1031, 80 N.Y.S.3d 142, quoting Matter of James M. v. Kevin M., 99 A.D.3d 911, 912–913, 952 N.Y.S.2d 257 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). As a general rule, "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 ).
Here, the Family Court's determination to modify the temporary order of custody so as to award temporary custody of the child to the mother was not in the best interests of the child under the totality of the circumstances. Considering, among other circumstances, the available home environments and the child's preference, it is in the child's best interests to remain in the temporary custody of the father pending a full hearing on the issue of permanent custody (see Matter of Grigoli v. Grigoli, 29 A.D.3d 792, 814 N.Y.S.2d 739 ).
RIVERA, J.P., LEVENTHAL, LASALLE and BRATHWAITE NELSON, JJ., concur.