SHAMIKA v. BEN (2001)

In this family offense proceeding brought pursuant to Family Court Act article 8, Family Court erred in conducting a limited examination of the parties under oath prior to a scheduled fact-finding hearing and dismissing the petition for “No prima facie case.”   There is no provision in the Family Court Act authorizing that procedure.   The only preliminary hearing authorized by the Family Court Act is the one required when a respondent is in custody and fails to post bail or otherwise remains in custody (see, Family Ct. Act § 821-a [4] ).   Even in that instance, if the court finds that “sufficient cause does not exist” to keep the respondent in custody, it is not authorized to dismiss the petition but may only release the respondent on his or her own recognizance (see, Family Ct. Act § 821-a [4] ).   The court's credibility determination is not entitled to deference because the court prevented cross-examination.   Furthermore, the court was influenced by the in-court statements of respondent's mother, who was never sworn as a witness.   We therefore reverse the order, reinstate the petition, and remit the matter to Erie County Family Court for further proceedings on the petition before a different Judge.

Order unanimously reversed on the law without costs, petition reinstated and matter remitted to Erie County Family Court for further proceedings on petition.

MEMORANDUM: