SALES v. GISENDANER (2000)

 In this child custody dispute between a mother and grandmother, Family Court erred in granting the grandmother's petition without a hearing on the ground that the mother had defaulted in appearing in response thereto.   A party who is represented at a scheduled court appearance by an attorney has not failed to appear (see, Matter of Cleveland W., 256 A.D.2d 1151, 1151-1152, 684 N.Y.S.2d 121;  Matter of Robert F., 200 A.D.2d 899, 607 N.Y.S.2d 454;  Matter of Cecelia A., 199 A.D.2d 582, 604 N.Y.S.2d 327;  cf., Matter of Black v. Black, 84 A.D.2d 922, 447 N.Y.S.2d 54).   In any event, the court erred in granting the petition summarily (see, Obey v. Degling, 37 N.Y.2d 768, 769-770, 375 N.Y.S.2d 91, 337 N.E.2d 601;  Matter of Van Etten v. Van Etten, 207 A.D.2d 992, 617 N.Y.S.2d 689).   A parent's right to be heard on a matter of child custody is fundamental and “not to be disregarded absent a convincing showing of waiver” (Matter of Kendra M., 175 A.D.2d 657, 658, 572 N.Y.S.2d 583;  see, Matter of Cleveland W., supra, at 1151, 684 N.Y.S.2d 121).   Moreover, transfer of custody from a parent to a nonparent requires a showing of extraordinary circumstances justifying the court's intervention, followed by a showing that an award of custody to the nonparent is in the child's best interests (see, Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 545-549, 387 N.Y.S.2d 821, 356 N.E.2d 277).   Those issues may not be determined summarily (see, Matter of Stefanik v. Roberts, 266 A.D.2d 758, 698 N.Y.S.2d 752, citing D'Entremont v. D'Entremont, 254 A.D.2d 576, 576-577, 678 N.Y.S.2d 819).   Consequently, we reverse the order 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 and matter remitted to Erie County Family Court for further proceedings.

MEMORANDUM: