Supreme Court, Appellate Division, Second Department, New York.
IN RE: Thomas A. LEDBETTER, respondent, v. Woodlyne SINGER, appellant.
Decided: June 27, 2018
CHERYL E. CHAMBERS, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, COLLEEN D. DUFFY, JJ.
Schulte Roth & Zabel LLP, New York, N.Y. (Taleah E. Jennings, Cara David, Thomas P. DeFranco, and Sadie H. Diaz of counsel), for appellant. Robert Marinelli, New York, N.Y., for respondent. Karen P. Simmons, Brooklyn, N.Y. (Lee Tarr and Janet Neustaetter of counsel), attorney for the children.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals, by permission, from an order of the Family Court, Kings County (Sharon A.B. Clarke, J.), dated August 10, 2017. The order granted the father's motion for temporary custody of the parties' children pending a final determination of the proceeding. By decision and order on motion of this Court dated October 17, 2017, enforcement of the order dated August 10, 2017, was stayed pending either the hearing and determination of the appeal or a final determination of the proceeding by the Family Court.
ORDERED that the order dated August 10, 2017, is reversed, on the law and the facts, without costs or disbursements, the father's motion for temporary custody of the parties' children is denied, and the matter is remitted to the Family Court, Kings County, for the completion, with all convenient speed, of the hearing on custody and a determination of the father's petition for sole custody of the children.
The father commenced this proceeding against the mother seeking sole custody of their children. The Family Court commenced a hearing and, prior to the completion of the hearing, in an order dated August 10, 2017, granted the father's motion for temporary custody of the children pending a final determination of the proceeding.
“The paramount concern in any custody ․ determination is the best interests of the child, under the totality of the circumstances” (Matter of James M. v. Kevin M., 99 A.D.3d 911, 912–913, 952 N.Y.S.2d 257; see Matter of Wilson v. McGlinchey, 2 N.Y.3d 375, 380–381, 779 N.Y.S.2d 159, 811 N.E.2d 526; Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260). Since a court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed (see Minjin Lee v. Jianchuang Xu, 131 A.D.3d 1013, 16 N.Y.S.3d 300; Matter of Peek v. Peek, 79 A.D.3d 753, 754, 913 N.Y.S.2d 281). This allows the court to “fulfill its duty to make an enlightened, objective and independent evaluation of the circumstances” (Minjin Lee v. Jianchuang Xu, 131 A.D.3d at 1014, 16 N.Y.S.3d 300 [internal quotation marks omitted]; see Mosesku v. Mosesku, 108 A.D.2d 795, 795, 485 N.Y.S.2d 122; Matter of Ehrlich v. Ressner, 55 A.D.2d 953, 954, 391 N.Y.S.2d 152).
“[A]s a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing” (Minjin Lee v. Jianchuang Xu, 131 A.D.3d at 1014, 16 N.Y.S.3d 300 [internal quotation marks omitted]; see Matter of Goldfarb v. Szabo, 130 A.D.3d 728, 728, 13 N.Y.S.3d 247; Matter of Mandal v. Mandal, 113 A.D.3d 769, 770, 978 N.Y.S.2d 880).
Here, the Family Court erred in granting the father's motion for temporary custody prior to a final determination of the proceeding. The mother had not completed presenting her evidence and there were many controverted issues. Accordingly, the order must be reversed, the father's motion denied, and the matter remitted to the Family Court, Kings County, for the completion of the hearing on custody and a determination of the father's petition for sole custody of the children.
CHAMBERS, J.P., AUSTIN, COHEN and DUFFY, JJ., concur.
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