IN RE: R. S. (2026)

Order, Family Court, Bronx County (Janette Cortes–Gomez, J.), entered on or about January 12, 2026, which denied the mother's motion to vacate the order of custody and visitation, same court and Judge, entered on or about October 14, 2025 upon the mother's default, and to restore the matter to the calendar, unanimously reversed, on the law, without costs, the motion granted, the custody and visitation order vacated, and the matter remanded for further proceedings consistent with this decision, including the resolution of any outstanding jurisdictional issues with the Florida Circuit Court.

In April 2023, the father filed a petition for custody of the parties' child under article 6 of the Family Court Act. The mother, who had moved to Florida with the child, failed to make an in-person appearance at the fact-finding hearing on the father's petition, instead appearing by video. Family Court, aware that the mother alleged domestic violence by the father, allowed the virtual appearances, but denied the mother the opportunity to testify via video. At later dates of the hearing, the mother failed to appear either virtually or in person. After the hearing, the court issued an order of custody and visitation on default, granting sole legal and physical custody to the father with parenting time to the mother. The mother timely moved under CPLR 5015(a)(1) to vacate that order, and the court denied the motion. We now reverse.

A party seeking to vacate an order entered on default must establish that there was a reasonable excuse for the default and a meritorious defense to the petition (see CPLR 5015[a][1]; Matter of Samuel V.S. [Shamea L.], 89 AD3d 566 [1st Dept 2011]). Although the decision to grant or deny a motion to vacate a default rests within the court's sound discretion, “default orders are disfavored in cases involving the custody or support of children, and thus the rules with respect to vacating default judgments are not to be applied as rigorously” (Matter of Abel A. v. Imanda M., 167 AD3d 528, 528 [1st Dept 2018] [internal quotation marks omitted]).

Here, based upon the facts of this case, including allegations of domestic violence, Family Court improvidently exercised its discretion in denying the mother's motion to vacate the custody order, particularly given the courts' preference for resolving custody disputes on the merits (see Matter of Melinda M. v. Anthony J.H., 143 AD3d 617, 618 [1st Dept 2016]). First, under the circumstances presented, the mother demonstrated an adequate excuse for her default (see Matter of Kenneth A.S. v. Jennice C., 202 AD3d 606, 607 [1st Dept 2022]). In support of her motion, the mother, who alleged during the proceedings that the father, his friends, and his family had harassed her and sent her death threats, noted that she failed to appear in person because she feared for her safety and that of the child. The mother also stated that an in-person appearance would have caused her to suffer financial hardship, as she did not have the funds to travel to New York City from Florida.

Further, the mother showed a meritorious defense (id.). The parties' child has lived exclusively with the mother for the past two and half years, and regardless of the circumstances, has not seen the father since infancy, nor did the father provide any financial support for the child. Though Family Court noted that the mother had stopped participating in hearings and complying with orders to appear in person, based upon the record the court was unable to determine whether the mother is following her course of psychiatric medication and therapy. Thus, at a minimum, the evidence before the Family Court was insufficient to make an informed determination that served the best interests of the child (see Matter of Abel A., 167 AD3d at 529; Matter of Kenneth A.S., 202 AD3d at 607).

Inasmuch as the record reflects that the father has had no visitation or contact with the child since March 2023, the court should hold further proceedings on the custody petition forthwith.