PAULA v. JOSE (2009)

Orders, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about October 11, 2007, which granted petitioner and the parties' son a five-year order of protection against respondent, and determined that respondent violated a temporary order of protection and committed him to the New York City Department of Corrections for a term of 30 days, and order, same court and Judge, entered on or about October 11, 2007, which awarded custody of the parties' son to petitioner and directed that respondent's access to the child must be court authorized, unanimously reversed, on the law, without costs, and the matter remanded for a hearing on the family offense and custody petitions.

 The court erred in issuing a custody order without the benefit of a hearing, where the best interests of the parties' son could be fully considered (see Matter of Linda J. v. Nakisha P., 10 A.D.3d 287, 288, 781 N.Y.S.2d 20 [2004];  Matter of Hudgins v. Goodley, 301 A.D.2d 524, 753 N.Y.S.2d 732 [2003] ).

 Similarly, the court erred in issuing a permanent order of protection without having held a fact-finding or a dispositional hearing (see Matter of Shevlin v. Minas, 253 A.D.2d 435, 675 N.Y.S.2d 897 [1998] ), and its finding that aggravating circumstances existed is not supported by the record (see Family Court Act § 827[a][vii] ).

 Furthermore, the court improperly held respondent in civil contempt in the absence of an evidentiary hearing, and because neither petitioner nor the court filed a petition alleging a violation of the temporary order of protection (see Family Court Act § 846;  § 846-a;  Matter of Janczuk v. Janczuk, 305 A.D.2d 680, 760 N.Y.S.2d 222 [2003];  see also James W.D. v. Sandra C., 44 A.D.3d 423, 424, 843 N.Y.S.2d 73 [2007] ).  “Inasmuch as enduring consequences potentially flow from an order adjudicating a party in civil contempt, an appeal from that order is not rendered moot simply because the resulting prison sentence has already been served” (Matter of Bickwid v. Deutsch, 87 N.Y.2d 862, 863, 638 N.Y.S.2d 932, 662 N.E.2d 250 [1995] ).