IN RE: KENNETH M. (2008)

Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: KENNETH M., Petitioner-Respondent, v. MONIQUE M., Respondent-Appellant.

Decided: February 01, 2008

PRESENT: HURLBUTT, J.P., MARTOCHE, FAHEY, PERADOTTO, AND GREEN, JJ.

David J. Pajak, Alden, for Respondent-Appellant. Sheila Sullivan Dickinson, Law Guardian, Buffalo, for Keionna M.

Respondent mother appeals from an order granting the petition seeking modification of an order setting forth a visitation schedule with her daughter. We agree with the mother that Family Court erred in entering a “default finding” on the petition based on her failure to appear at the hearing. The mother's counsel was present and was given the opportunity to participate in the hearing (see Matter of David A.A. v. Maryann A., 41 A.D.3d 1300, 837 N.Y.S.2d 479).

We further agree with the mother that the court erred in modifying her visitation schedule without conducting a hearing. “Determinations affecting custody and visitation should be made following a full evidentiary hearing, not on the basis of conflicting allegations” (Matter of Naughton-General v. Naughton, 242 A.D.2d 937, 938, 662 N.Y.S.2d 956; see Matter of Smith v. Patrowski, 226 A.D.2d 1073, 642 N.Y.S.2d 122). Inasmuch as the court failed to conduct a hearing, we are unable to determine on the record before us whether modification of the mother's visitation schedule was warranted.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Erie County, for a hearing on the petition.

MEMORANDUM:

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