This opinion is uncorrected and subject to revision before

publication in the New York Reports.

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No. 93 

S.L. (Anonymous),

 Appellant,

 v.

J.R. (Anonymous),

 Respondent.

Harold R. Burke, for appellant.

Respondent pro se.

John A. Pappalardo, for the children.

Domestic Violence Legal Empowerment and Appeals Project

et al., amici curiae.

GARCIA, J.:

This case requires that we consider whether Supreme

Court properly made a final custody determination without first

conducting a plenary hearing. We hold that, on this record, a

hearing was required. 

After nearly 15 years of marriage, appellant S.L.

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(Mother) commenced divorce proceedings against respondent J.R.

(Father), seeking full custody of their two minor children. 

Shortly thereafter, Father filed an order to show cause seeking

temporary sole legal custody of the children, alleging that he

feared for their safety based on a series of alleged incidents

involving harassment, extramarital affairs, and abuse of alcohol

and prescription medication by Mother. Supreme Court granted

Father temporary sole interim legal and physical custody of the

children and provided for supervised visitation for Mother. 

After receiving responsive papers from Mother and the Attorney

for the Children, the court issued a second order continuing the

interim award of custody for Father and supervised visitation for

Mother. 

The court later received the report of a courtappointed forensic evaluator, who concluded that Father was the

more "psychologically stable" of the two parents. During a

subsequent appearance, the court set a briefing schedule and

stated that it "may also be in a position to determine custody

sua sponte, based on [the] information in this case." The

parties submitted letter briefs regarding Father's requested

relocation and the court's ability to grant custody to Father

without a hearing.

One month later, the court resolved the custody portion

of the parties' dispute: Father was awarded sole legal and

physical custody of the children. With regard to visitation, the

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court noted that, although "the parties plan[ned] to continue to

make attempts at reinstating therapeutic or supervised

visitation," both visitation and family therapy had been

"suspended" for more than five months. The court did not conduct

an evidentiary hearing, remarking that a hearing was "not

necessary in these circumstances since the allegations are not

controverted." Specifically, the court noted that Mother

"acknowledged her involvement in many incidents of disturbing

behavior." The court also cited the opinions of the family

therapist, the court-appointed forensic evaluator, and the agency

supervising visitation in support of its determination. 

The Appellate Division unanimously affirmed (S.L. v

J.R., 126 AD3d 682 [2d Dept 2015]). The court noted that custody

determinations "generally may only be made following a full and

comprehensive evidentiary hearing," but held that "no hearing is

necessary where, as here, 'the court possesses adequate relevant

information to enable it to make an informed and provident

determination as to the child's best interest'" (id. at 682). 

Pointing to "the parties' affidavits and the reports prepared by

the court-appointed forensic evaluator," the court reasoned that

Mother "admits" Father's allegations "regarding her emotionally

destructive and sometimes violent behavior toward him and the

parties' two children" (id.). In addition, "the forensic

evaluator, who interviewed the parties and the subject children,

concluded that [Father] was the more stable parent, and that

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[Father] was able to make sound parenting decisions for the

children" (id.). The court also noted that "the attorney for the

children supported the award of custody" to Father (id.). 

We granted leave to appeal and now reverse. 

It is well-settled that parents have a fundamental

right to custody of their children (Santosky v Kramer, 455 US

745, 753-754 [1982]; Matter of Ella B., 30 NY2d 352, 357 [1972]). 

However, in child custody determinations, neither parent has a

"prima face right to the custody of the child" (Domestic

Relations Law § 70[a]). Instead, in assessing questions of child

custody, courts must "make every effort to determine what is for

the best interest of the child, and what will best promote its

welfare and happiness" (Eschbach v Eschbach, 56 NY2d 167, 171

[1982] [internal quotation marks and citations omitted]). In all

custody disputes between divorced parents, "the first concern of

the court is and must be the welfare and the interests of the

children" (Lincoln v Lincoln, 24 NY2d 270, 271-272 [1969]). The

interests of the children are always "paramount" and the "rights

of their parents must, in the case of conflict, yield to that

superior demand" (id. at 272).

Our precedent makes clear that custody determinations

should "[g]enerally" be made "only after a full and plenary

hearing and inquiry" (Obey v Degling, 37 NY2d 768, 770 [1975]). 

This general rule furthers the substantial interest, shared by

the state, the children, and the parents, in ensuring that

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custody proceedings generate a just and enduring result that,

above all else, serves the best interest of a child. Wherever

possible, "[c]ustody of children should be established on a longterm basis"; "children should not be shuttled back and forth

between divorced parents" merely because of changed circumstances

"so long as the custodial parent has not been shown to be unfit"

(id. at 770). Given the goals of stability and permanency, as

well as the weight of the interests at stake, the societal cost

of even an occasional error in a custody proceeding is sizeable. 

Custody determinations therefore require a careful and

comprehensive evaluation of the material facts and circumstances

in order to permit the court to ascertain the optimal result for

the child. The value of a plenary hearing is particularly

pronounced in custody cases in light of the subjective factors --

such as the credibility and sincerity of the witnesses, and the

character and temperament of the parents -- that are often

critical to the court's determination. 

But in light of our guiding principle -- the best

interest of the child -- there can be "no absolutes" in child

custody cases (Eschbach, 56 NY2d at 171; Friederwitzer v

Friederwitzer, 55 NY2d 89, 93 [1982]). Custody determinations

must be "entrusted to the sound discretion of the trial court"

(Matter of Jewish Child Care Ass'n of New York, 5 NY2d 222, 228

[1959]). Accordingly, the "general" right to a hearing in

custody cases is not an absolute one. 

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Here, the Appellate Division upheld Supreme Court's

decision not to conduct an evidentiary hearing based on its

determination that the court possessed "adequate relevant

information to enable it to make an informed and provident

determination as to the child's best interest." This holding was

error. 

The undefined and imprecise "adequate relevant

information" standard applied by the courts below tolerates an

unacceptably-high risk of yielding custody determinations that do

not conform to the best interest of a child -- the first and

paramount concern of the court. Nor does this standard

adequately protect a parent whose fundamental right -- the right

"to control the upbringing of a child" (Matter of Adoption of

Maxwell, 4 NY2d 429, 439 [1958]) -- hangs in the balance. For

instance, in rendering a final custody award without a hearing,

Supreme Court appeared to rely on, among other things, hearsay

statements and the conclusion of a court-appointed forensic

evaluator whose opinions and credibility were untested by either

party. A decision regarding child custody should be based on

admissible evidence, and there is no indication that a "best

interest" determination was ever made based on anything more

reliable than mere "information." Moreover, while Supreme Court

purported to rely on allegations that were "not controverted,"

the affidavit filed by Mother plainly called into question or

sought to explain the circumstances surrounding many of the

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alleged "incidents of disturbing behavior." These circumstances

do not fit within the narrow exception to the general right to a

hearing. 

We take no position on whether the award of custody to

Father was an appropriate result; we hold only that, on this

record, the Appellate Division erred in holding that a hearing

was not required based on an application of the "adequate

relevant information" standard. In doing so, we reaffirm the

long-established principle that, as a general matter, custody

determinations should be rendered only after a full and plenary

hearing. We decline, however, to fashion a "one size fits all"

rule mandating a hearing in every custody case statewide. 

However, where, as here, facts material to the best interest

analysis, and the circumstances surrounding such facts, remain in

dispute, a custody hearing is required. Accordingly, a court

opting to forego a plenary hearing must take care to clearly

articulate which factors were -- or were not -- material to its

determination, and the evidence supporting its decision. Under

the circumstances of this case, a plenary hearing was necessary. 

The order of the Appellate Division should be reversed,

with costs, and the case remitted to Supreme Court for further

proceedings in accordance with this opinion.

* * * * * * * * * * * * * * * * *

Order reversed, with costs, and case remitted to Supreme Court,

Westchester County, for further proceedings in accordance with

the opinion herein. Opinion by Judge Garcia. Judges Pigott,

Rivera, Abdus-Salaam, Stein and Fahey concur. Chief Judge

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DiFiore took no part.

Decided June 9, 2016

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