IN RE: KENNETH J. (2018)

Order, Family Court, New York County (Machelle Sweeting, J.), entered on or about June 27, 2017, which granted the mother's motion for summary judgment and suspended all visitation and contact of any kind between the father and the parties' child, unanimously reversed, without costs, the mother's and the attorney for the child's motions for summary judgment denied, the mother's petition for modification of custody suspending the father's visitation, and the father's petitions for enforcement of visitation, holiday visitation modification, and custody modification awarding him sole custody restored, and the matter remanded.

Family Court improperly determined the mother's modification petition and the father's petitions for enforcement, parenting time modification, and sole custody by suspending all contact between the father and child without a hearing.¹  Modification of custody or visitation, even on a temporary basis, requires a hearing, except in cases of emergency (Shoshanah B. v. Lela G., 140 A.D.3d 603, 606, 35 N.Y.S.3d 18 [1st Dept. 2016] ).  We have held that a hearing may be “as abbreviated, in the court's broad discretion, as the particular allegations and known circumstances warrant” (Martin R.G. v. Ofelia G.O., 24 A.D.3d 305, 306, 809 N.Y.S.2d 1 [1st Dept. 2005];  see also Matter of Myles M. v. Pei–Fong K., 93 A.D.3d 474, 940 N.Y.S.2d 71 [1st Dept. 2012] [court properly modified custody to permit unsupervised visitation without a full hearing, based on, inter alia, testimony of forensic social worker] ).  However, here, the court granted the drastic remedy of suspension of all contact between parent and child based solely upon its in camera interview with the child and its review of the motion papers and some portion of the court file, which included an unsworn and uncertified report by Family Court Mental Health Services (MHS) and unsworn letters from the child's treating therapist and from therapists who had seen the parties and child for family therapy between June and November 2016.

While a court may consider a child's expressed preference, the child's statement is not determinative of the child's best interests, and the court “must consider the age and maturity of the child and the potential for influence having been exerted on the child” (Eschbach v. Eschbach, 56 N.Y.2d 167, 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ).

It is not clear from the record before us what portions of the record of the earlier custody case Family Court relied on in reaching its determination.  While the father repeated some claims he had made during the earlier proceedings, he also made new allegations, denied that the child's current distress was caused solely by his actions, and urged that the full forensic evaluation that had previously been ordered by the court on consent be completed before the court ruled on the petitions.

Family Court improperly considered the MHS report, since it was not referenced in or attached to the mother's or the child's attorney's motion, was neither sworn nor certified and thus not in admissible form, as is required on a motion for summary judgment (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ), contained inadmissible hearsay (see Straus v. Strauss, 136 A.D.3d 419, 420, 24 N.Y.S.3d 76 [1st Dept. 2016] ), and was not subject to cross-examination.  Moreover, even if the court could have considered the report, it did not support suspension of all contact between the father and the parties' child.  In fact, it (1) did not state conclusions with a reasonable degree of psychological certainty;  (2) was not based on interview with the child or consultation with the child's therapist;  (3) noted that the father acknowledged that his conduct was one factor in the child's anger toward him, and that the mother acknowledged that she had not consistently shielded the child from her anger toward the father;  and (4) recommended only that the parties continue in family therapy, and that the father and child each continue in individual therapy.  Accordingly, it did not support the result ordered by the court.

The court also improperly considered the therapists' unsworn letters, which were not attached to the mother's or the child's attorney's motion, and which also contained inadmissible hearsay.  Even if the court could have considered them, we would find that they did not support the award of summary judgment to the mother, since they failed to establish that there were no material facts in dispute and that the mother was entitled to the relief sought as a matter of law (CPLR 3212[b] ).  The mother had alleged that the father's disparagement of her in the child's presence and his discussion of his adult problems with the child caused the child's anxiety and suicidal thoughts.  The father claimed that the child's distress was the result of the mother's efforts to alienate the child from him.  The therapists' observations were not a substitute for a formal neutral forensic mental health evaluation, and did not establish that suspension of all contact between the father and child was in the child's best interests.

FOOTNOTES

1.   We note that, while the order issued on the record suspended visitation and other forms of contact for one year, the written order appealed from contains no time limit.