SYLVIA v. NELSON (2007)

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

SYLVIA B., Petitioner-Respondent, v. NELSON R., Respondent-Appellant.

Decided: December 20, 2007

LIPPMAN, P.J., MAZZARELLI, SAXE, WILLIAMS, BUCKLEY, JJ.

Frederic P. Schneider, New York, for appellant. Steven N. Feinman, White Plains, law guardian.

Order, Family Court, Bronx County (Myrna Martinez-Perez, J.), entered on or about September 22, 2006, which awarded custody of the parties' child to petitioner mother, unanimously reversed, on the law, without costs, and the matter remanded for a hearing.

While a court need not conduct a hearing where a change in custody is sought upon speculative and frivolous reasons (David W. v. Julia W., 158 A.D.2d 1, 6-7, 557 N.Y.S.2d 314 [1990] ), here, a family offense petition was filed. The infant child himself is alleged to have reported that petitioner struck him with a belt and metal buckle five times, causing bruising and soreness to the right arm and wrist. A full and comprehensive hearing was required to determine whether the totality of the circumstances warranted modification of the custody order in the best interests of the child (Matter of Gant v. Higgins, 203 A.D.2d 23, 609 N.Y.S.2d 243 [1994] ).

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