IN RE: Camellia M. NALTY

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

IN RE: Camellia M. NALTY, appellant, v. Clifton A. KONG, respondent.  (Proceeding No. 1)

IN RE: Clifton A. Kong, respondent, v. Camellia M. Nalty, appellant.  (Proceeding No. 2).

Decided: February 24, 2009

A. GAIL PRUDENTI, P.J., MARK C. DILLON, JOSEPH COVELLO, and JOHN M. LEVENTHAL, JJ. Hoffman & Behar, LLP, Mineola, N.Y. (Alexandra N. Cohen of counsel), for appellant. Posner & Gaier, Hempstead, N.Y. (Stephen Posner and Phyllis Gaier of counsel), for respondent Clifton A. Kong. Amy L. Colvin, Huntington, N.Y., attorney for the child.

In related custody proceedings pursuant to Family Court Act article 6, in which the parties respectively sought custody of the subject child, the mother appeals from an order of the Family Court, Nassau County (Philips, Ct.Atty.Ref.), dated March 26, 2008, which, after a hearing, awarded the parties joint custody of the child.

ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Nassau County, for a new hearing before a different Court Attorney Referee, to be held with all convenient speed, and a new determination thereafter;  and it is further,

ORDERED that pending the final custody determination, the mother shall have temporary custody of the child, with visitation to the father each week from Tuesday at 3:00 P.M. until Wednesday at 9:00 P.M., and on alternate weekends from Friday at 12:00 noon until Sunday at 6:00 P.M.

 An award of custody must be based on the child's best interests (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).   Generally, the determination of a custody issue can only be resolved after a full and comprehensive hearing, and a careful analysis of the applicable factors to be considered in determining what custody arrangement will further the child's best interests (see Obey v. Degling, 37 N.Y.2d 768, 769-70, 375 N.Y.S.2d 91, 337 N.E.2d 601;  State ex rel. Hathaway v. Baker, 103 A.D.2d 762, 762-63, 477 N.Y.S.2d 236).   Hence, as a general rule, it is error, as a matter of law, to make an order respecting custody based upon controverted allegations without the benefit of a full hearing (see Matter of Roldan v. Nieves, 51 A.D.3d 803, 805, 857 N.Y.S.2d 716;  Matter of Ling Da Chen v. Yue Hua Zhou, 39 A.D.3d 753, 835 N.Y.S.2d 281;  Matter of Khan v. Dolly, 6 A.D.3d 437, 439, 774 N.Y.S.2d 365;  Matter of Hudgins v. Goodley, 301 A.D.2d 524, 753 N.Y.S.2d 732;  Matter of Benedict v. Zimmer, 296 A.D.2d 459, 744 N.Y.S.2d 717;  Matter of Klang v. Klang, 235 A.D.2d 476, 477, 652 N.Y.S.2d 312).   Indeed, a custody determination must have a sound and substantial basis in the record (see Matter of Roldan v. Nieves, 51 A.D.3d at 805, 857 N.Y.S.2d 716).

 In deciding the parties' petitions for sole custody of the child, the Family Court, faced with controverted allegations, made a custody determination after an abbreviated hearing at which the evidence was insufficient to make an informed “best interests” determination.   Under these circumstances, the Family Court's custody determination lacks a sound and substantial basis in the record, and cannot be upheld (see Matter of Roldan v. Nieves, 51 A.D.3d at 805, 857 N.Y.S.2d 716;  Matter of Machado v. Del Villar, 299 A.D.2d 361, 751 N.Y.S.2d 489;  State ex rel. Hathaway v. Baker, 103 A.D.2d at 763, 477 N.Y.S.2d 236).   Accordingly, we reverse the order appealed from, and remit the matter to the Family Court, Nassau County, for a de novo hearing before a different Court Attorney Referee, to be held with all convenient speed, and a new custody determination thereafter.

The contentions of the father and the attorney for the child concerning the appealability of the order under review, as well as the reviewability of the mother's arguments, are without merit.

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