Matter of Mandal v Mandal

Matter of Mandal v Mandal 2014 NY Slip Op 00357 Decided on January 22, 2014 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 22, 2014
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
PLUMMER E. LOTT
JEFFREY A. COHEN
SYLVIA O. HINDS-RADIX, JJ.
2012-11054
(Docket Nos. V-22779-10, V-22780-10, V-22781-10)

[*1]In the Matter of Krishnendu Mandal, respondent,

v

Reshmi Mandal, appellant.




Amy Mulzer, Brooklyn, N.Y., for appellant.
Teresita Morales, Jamaica, N.Y., attorney for the children.


DECISION & ORDER

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Queens County (McGowan, J.), dated November 19, 2012, as, without a hearing, awarded custody of the subject children to the father.

ORDERED that the order is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for an evidentiary hearing to be held with all convenient speed on the issue of custody and a new determination of the petition thereafter; and it is further,

ORDERED that pending the hearing and new determination, the subject children shall remain in the custody of the father.

An award of custody must be based upon the best interests of the child, and neither parent has a prima facie right to custody of the child (see Matter of Zaratzian v Abadir, 105 AD3d 1054; Matter of Peek v Peek, 79 AD3d 753, 753-754). "Since the 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" (Matter of Peek v Peek, 79 AD3d at 754 [internal citations omitted]; see Matter of Labella v Murray, 108 AD3d 547; Matter of Perez v Estevez, 82 AD3d 1106). Therefore, as a general rule, it is error to make an order respecting custody based upon controverted allegations without the benefit of a full hearing (see Matter of Labella v Murray, 108 AD3d at 547; Matter of Swinson v Brewington, 84 AD3d 1251, 1253; Matter of Perez v Estevez, 82 AD3d at 1106; Matter of Peek v Peek, 79 AD3d at 754). It is not necessary, however to conduct such a hearing "where the court already possesses sufficient relevant information to render an informed determination in the child's best interest" (Matter of Labella v Murray, 108 AD3d at 548 [internal quotation marks omitted]; see Matter of Perez v Estevez, 82 AD3d at 1106).

Under the circumstances presented here, it cannot be concluded that the Family Court possessed sufficient information to render an informed determination as to the best interests of the [*2]subject children (see Matter of Labella v Murray, 108 AD3d at 548; Matter of Savoca v Bellofatto, 104 AD3d 695, 696; Matter of Perez v Estevez, 82 AD3d at 1106; Matter of Peek v Peek, 79 AD3d at 754). In addition, in issuing its determination, the Family Court failed to make " specific findings of fact with respect to the issue of custody,'" as it is required to do (Matter of Savoca v Bellofatto, 104 AD3d at 696, quoting Audubon v Audubon, 138 AD2d 658, 659; see Mauter v Mauter, 309 AD2d 737, 738).

Accordingly, the matter must be remitted to the Family Court, Queens County, for an evidentiary hearing on the issue of custody and a new determination of the petition thereafter (see Matter of Labella v Murray, 108 AD3d at 548; Matter of Perez v Estevez, 82 AD3d at 1106).
SKELOS, J.P., LOTT, COHEN and HINDS-RADIX, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court