State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 9, 2015 519997 

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In the Matter of CURTIS R.

VARNER,

Respondent,

v MEMORANDUM AND ORDER

AMANDA N. GLASS,

Appellant.

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Calendar Date: April 30, 2015

Before: Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

__________

Michelle I. Rosien, Philmont, for appellant.

John Ferrara, Monticello, attorney for the children.

__________

Garry, J.

Appeal from an order of the Family Court of Sullivan County

(McGuire, J.), entered August 21, 2014, which granted

petitioner's application, in a proceeding pursuant to Family Ct

Act article 6, for custody of the parties' children.

Petitioner (hereinafter the father) and respondent

(hereinafter the mother) are the parents of two children (born in

2012 and 2013). Shortly after the parties married in 2011, they

began residing with the children's paternal grandmother in

Sullivan County. In late 2013, the parties agreed to move to

California, planning that the mother would first relocate with

the children and the father would follow a few months later,

after making arrangements for transportation or disposal of their

belongings. The mother and children relocated to California in

January 2014, residing there with the mother's aunt. In early
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March 2014, the father advised that he intended to rejoin the

family in the immediate future; the mother objected and told him

to delay his plans. During this period, the conflict between the

parties ultimately culminated in a complete breakdown of their

relationship and cessation of communication. 

The father filed a custody petition in Family Court and the

mother then petitioned for custody in California. Family Court

conferred with the California court, and it was determined that

New York, as the children's home state, would retain jurisdiction

of the custody matter (see Domestic Relations Law § 76-e [2]). 

Shortly thereafter, a custody hearing commenced. The mother was

the sole witness to testify and, following her testimony on

direct examination, the court granted the father's motion –

joined by the attorney for the children – for a directed verdict,

granted the father full custody, and made no provision for the

mother to have contact with the children. The mother appeals. 

We reverse. As the mother and the attorney for the

children on appeal argue, Family Court's decision lacks a sound

and substantial basis. The court erred in rendering this initial

custody determination upon a motion for a directed verdict based

upon sorely limited evidence and testimony. An initial custody

determination must be based upon the best interests of the

children overall, considering all relevant factors, including

"the parents' past performance and relative fitness, their

willingness to foster a positive relationship between the child

and the other parent, as well as their ability to maintain a

stable home environment and provide for the child's overall

well-being" (Matter of Bush v Lopez, 125 AD3d 1150, 1150-1151

[2015] [internal quotation marks and citations omitted]; see

generally Eschbach v Eschbach, 56 NY2d 167 [1982]). The record

evidence here was patently insufficient to permit such an

analysis; instead, it fully illustrates why it is generally held

to be error as a matter of law to render a custody award in a

controverted proceeding without the benefit of a full hearing

(see Matter of Nalty v Kong, 59 AD3d 723, 724 [2009]; Matter of

Williams v Williams, 35 AD3d 1098, 1099-1100 [2006]). 

All parties involved in the underlying proceeding erred in

viewing the issues solely as a matter of application of the
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factors established in Matter of Tropea v Tropea (87 NY2d 727

[1996]). As there had been no prior award of custody, strict

application of those factors was not required (see Ostrander v

McCain, 68 AD3d 1480, 1481 [2009]; Malcolm v Jurow-Malcolm, 63

AD3d 1254, 1255 [2009]; Furman v Furman, 298 AD2d 627, 628-629

[2002], lv denied and dismissed 99 NY2d 575 [2003]). Rather, the

effect of relocation was among the relevant factors to be

considered in determining the children's best interests (see

Matter of Saperston v Holdaway, 93 AD3d 1271, 1272 [2012], lvs

dismissed 19 NY3d 887 [2012], 20 NY3d 1052 [2013]; Matter of

Baker v Spurgeon, 85 AD3d 1494, 1496 [2011], lv dismissed 17 NY3d

897 [2011]). As the court "'did not possess sufficient

information to render an informed determination that was

consistent with the child[ren's] best interests,'" we reverse and

remit for a full hearing (Matter of Williams v Williams, 35 AD3d

at 1100, quoting Matter of Elliott v Major, 1 AD3d 940, 941

[2003]; see Obey v Degling, 37 NY2d 768, 771 [1975]; see also

Matter of Cornell v Cornell, 8 AD3d 718, 720 [2004]). 

Family Court further erred in failing to make any provision

for the mother to have contact or communication with the

children. As the attorney for the children asserts, no basis was

demonstrated for fearing that any harm might befall the children

in their mother's care. As a direct result of the court's

failure to address the mother's right to access to her children

in any manner whatsoever, these young children have now been

wholly deprived of their mother's care and company for a lengthy

period of their young lives. It is therefore imperative that a

temporary order be made forthwith providing for communication and

parenting time with the children for the mother, and establishing

guidelines and provisions for shared parenting during the

pendency of further proceedings. Unfortunately, the record

before us is so sparse that we lack essential information to

address this issue appropriately. 

Finally, as we find that the manner in which this hearing

was conducted reveals that Family Court treated the mother with

apparent disdain, such that we cannot be assured that further

proceedings will be conducted in an impartial manner, we further

direct that future proceedings between these parties be presided

over by a different judge (see Matter of Valenti v Valenti, 57
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AD3d 1131, 1136 [2008], lv denied 12 NY3d 703 [2009]).

Lahtinen, J.P., Egan Jr. and Rose, JJ., concur.

ORDERED that the order is reversed, on the law, without

costs, matter remitted to the Family Court of Sullivan County for

further proceedings not inconsistent with this Court's decision

before a different judge, and, within 30 days of the date of this

order, Family Court is directed to issue a temporary order making

provisions for shared parenting time for respondent, and, pending

said further proceedings, temporary physical custody of the

children shall continue with petitioner. 

ENTER:

Robert D. Mayberger

Clerk of the Court