IN RE: an Article 6 Custody/Visitation proceeding L.U.V. (2026)

This matter comes before the Court on cross-petitions for custody filed by both parties. The Petitioner Father filed a petition seeking custody of the parties' three children on or about June 5, 2025. On October 10, 2025, the parties appeared before the Court and mutually agreed to a temporary parenting schedule of alternating-weeks. On November 18, 2025, Respondent Mother filed a cross-petition for custody. No final custody order has been entered.

On April 22, 2026, the Movant Mother filed the present Order to Show Cause seeking temporary legal and physical custody pendente lite. The parties appeared on May 1, 2026, and the matter was adjourned for the Nonmovant Father to file opposition papers, over Movant Mother's objections. On June 15, 2026, the parties, through counsel, presented oral argument. The Court ordered toxicology testing on the same day. No evidentiary hearing was held on the interim relief requested. The fact-finding trial commenced on June 26, 2026, and continues, with upcoming dates set for September 14, 25, and 30, 2026. Before adjourning the fact-finding trial on June 26, 2026, the Movant Mother renewed her application seeking a temporary custody of the three subject children.

The Court has reviewed the parties' submissions, including the Movant Mother's Affirmation and Affidavit in Support, the Nonmovant Father's written opposition, the Administration for Children's Services ("ACS") Court-Ordered Investigation dated April 7, 2026, and prior Orders of this Court, including the May 1, 2026 Order prohibiting both parties from consuming alcohol during parenting time. Having carefully considered the parties' respective factual allegations and the applicable legal standards, the Court denies the motion for temporary custody for the following reasons.

Movant Mother alleges that the Nonmovant Father drinks to excess, consumes alcohol during his parenting time, drives with the children while intoxicated, and has engaged in physical aggression toward the oldest child, C.U. The allegation of intoxicated driving originates with C.U., who reported the concern to Movant Mother and later repeated it to the Attorney for the Children ("AFC"). During the ACS investigation, C.U. again repeated the allegation, identified "beer" as the substance involved, reported one incident of physical discipline, and stated that his relationship with both parents is otherwise good. ACS further noted that C.U. could not specify how often his father drinks or whether the Nonmovant Father is intoxicated on every visit. EU, the second-oldest child, made inconsistent statements. She told ACS that she had not observed either parent drinking, and did not repeat CU's allegation. Her account differed from what she later reported to her AFC.

Interim custody awards disturbing an existing custodial arrangement are extraordinary remedies. The Second Department has long held that custody determinations, including temporary custody awards, should generally be made only following a full evidentiary hearing. See, S.L. v. J.R., 27 NY3d 558 (2016). In Obey v. Degling, 37 NY2d 768 (1975), the Court of Appeals stated that it is error to make custody determinations based solely on conflicting affidavits without the benefit of a hearing. The Second Department has repeatedly applied that rule. In Metzger v. Metzger, 240 AD2d 642 (2d Dept. 1997), the Appellate Division held that it is "error as a matter of law" to resolve custody on controverted allegations without an evidentiary hearing. In Biagi v. Biagi, 124 AD2d 770 (2d Dept. 1986), and Klang v. Klang, 235 AD2d 476 (2d Dept. 1997), the Court reiterated that a hearing is required where the parties' affidavits raise disputed factual claims bearing on parental fitness. Similarly, Robert C.R. v. Victoria R., 143 AD2d 262 (2d Dept. 1988), held that temporary custody may not be altered absent an evidentiary hearing where material facts are contested.

Although a hearing may be dispensed with under limited circumstances, the Second Department has made clear that this is permissible only where the undisputed facts before the Court supply adequate relevant information sufficient, in and of themselves, to make a custody determination. In Loggia v. Verardo, 167 AD3d 612 (2d Dept. 2018), the Court held that no hearing is required only where the facts are undisputed. Likewise, Randall v. Diaz, 208 AD3d 1330 (2d Dept. 2022), emphasized that dispensing with a hearing is permitted only when the Court has "adequate relevant information" and there are no material factual disputes.

The record before this Court is far from undisputed. The parties' accounts in their written papers and as argued in court differ substantially. Two of the subject children, C.U. and E.U. made different and inconsistent statements to ACS and the AFC. E.U.'s statements to ACS regarding alcohol use directly contradict C.U.'s statements and contradict her own statements to the AFC. The ACS report contains no collateral contacts and no independent verification of the truth of the allegations. No affidavit was submitted by the Nonmovant Father; however, the burden remains with the Movant Mother to present reliable, corroborated evidence establishing an emergency warranting temporary custody. These disputed factual issues cannot be resolved on the papers alone.

Movant Mother contends that the children's statements corroborate one another and therefore support interim relief without a hearing. The Court disagrees. Although caselaw recognizes that consistent sibling statements may constitute corroboration when they are materially aligned and reliable, E.U.'s inconsistent accounts prevent such a finding here. She told ACS that she had not seen either parent drinking, which directly contradicts both her statement to the AFC and C.U.'s statements. Because E.U.'s accounts conflict, the Court cannot conclude that she corroborates C.U.'s allegations within the meaning of Family Court Act ("FCA") § 1046(a)(vi). Accordingly, in the absence of a hearing, the children's statements remain uncorroborated for purposes of interim relief.

Movant Mother also relies on FCA § 1046(a)(iii), which establishes a prima facie presumption of neglect where a parent repeatedly misuses alcohol to the degree of substantial intoxication or impairment. That statutory presumption does not apply here. The Second Department's decision in Matter of Mykel B., 232 AD3d 781 (2d Dept. 2024), explains that § 1046(a)(iii) requires proof of repeated misuse resulting in substantial intoxication or impaired judgment. No such evidence has been alleged. E.U. stated that she did not observe alcohol use. C.U. did not respond when asked about frequency. There is no corroborated allegations of repeated misuse producing impairment. The presumption is therefore not triggered. The Court also notes Matter of Mia S., 212 AD3d 17 (2d Dept. 2022), which held that absent evidence of repetitive drug use to the extent required by FCA § 1046(a)(iii), or evidence of impairment or imminent danger of impairment, a neglect finding cannot be sustained. The same principle applies here.

Even assuming, solely for purposes of analysis, that the allegation of intoxicated driving were substantiated, Movant Mother has not demonstrated that granting her temporary custody would meaningfully mitigate the alleged risk. The conduct at issue concerns the Nonmovant Father's behavior during his parenting time. Even if temporary custody were awarded to Movant Mother, the Nonmovant Father would still receive visitation absent a complete suspension of access, so an interim custody shift would not eliminate or reduce the alleged harm. See, Shoshanah B. v. Lela G., 140 AD3d 603 (1st Dept. 2016). Moreover, the Court has already issued an Order directing both parents to refrain from consuming alcohol during their respective parenting time, which serves as an immediate safeguard while the matter proceeds to trial.

The Court further notes that the fact-finding trial on the cross-petitions is already underway, with additional dates scheduled. A hearing on Movant Mother's application for temporary custody would necessarily replicate the same evidentiary process: the same witnesses, the same allegations, the same credibility assessments, and the same evidence would need to be presented. As the First Department observed in Matter of Martin R.G., 24 AD3d 306 (1st Dept. 2005), even an abbreviated hearing "must include an opportunity for both sides, and the children's attorney when there is one, to present their respective cases, and the factual underpinnings of any temporary order must be made clear on the record." Holding a separate hearing on the OSC merely to then resume the fact-finding trial would create two successive proceedings addressing identical issues. Such duplication would be inefficient, contrary to judicial economy, and ultimately superfluous, especially given that the ongoing trial will resolve the disputed allegations through a full evidentiary record.

In light of the ongoing trial and the absence of an emergency requiring immediate intervention, the Court will not convene a separate evidentiary hearing on the Movant Mother's Order to Show Cause. The appropriate vehicle for resolving the parties' disputed factual allegations remains the custody trial already underway. This posture reinforces the conclusion that interim judicial intervention disturbing the temporary parenting arrangement is disfavored. Disputed factual issues, including those arising from the inconsistent statements made by E.U. and C.U., must be resolved at the ongoing evidentiary hearing. The Court does not possess adequate, relevant information to make an informed and provident best-interests determination at this juncture.

For these reasons, the Movant Mother has not shown on the papers, that the subject children face an imminent risk of harm requiring temporary alteration of the custodial arrangement. The allegations of intoxicated driving and alcohol misuse are not corroborated, the statutory presumption of neglect under FCA § 1046(a)(iii) is not triggered, the children's statements are inconsistent, and a temporary change in custody would not eliminate the alleged harm. Moreover, any potential risk associated with the Nonmovant Father allegedly driving while intoxicated is mitigated by the Court's May 1, 2026 Order directing both parties to refrain from consuming alcohol during parenting time. The issues raised must be addressed through testimony and cross-examination at the ongoing trial, not through interim relief based solely on the papers.

Accordingly, it is

ORDERED, that the Movant Mother's Order to Show Cause, dated April 22, 2026 (motion seq. #1), seeking temporary legal and physical custody pendente lite, is denied; and it is further

ORDERED, that the temporary alternating-weeks parenting schedule shall remain in effect pending completion of the evidentiary hearing and issuance of a final custody determination, or upon further Order of the Court.

This constitutes the Decision and Order of the Court.

Dated: July 14, 2026

ENTER:

Brooklyn, New York

Hon. Lola Waterman, F.C.J.

Lola Waterman, J.