Change of Custody: When Is a Hearing Required?

In Martin, the Family Court's “evident displeasure at the mother's move to New Jersey” was not sufficient to justify the temporary award of custody, without a hearing, to the father in the absence of an emergency or other “apparent basis for the order.” 24 AD3d at 306. The First Department has followed this rule, as seen in a 2012 decision in which it reversed a Family Court's temporary change of custody without a hearing after finding there was no emergency supporting the Family Court's failure to hold a hearing. Roger W. v. Samantha S., 93 AD3d 743 (1st Dept. 2012). The appellate court further stated that the Family Court decision could not be supported by a substantial basis in the record, because it contained no testimony and the only evidence adduced was a home study indicating that there were factual disputes about the effects of the home environment on the child.

Although custody can be determined without a hearing when there are sufficient unchallenged facts in the record, there must be a hearing when there are “controverted allegations.” Carlin v. Carlin, 52 AD3d 559 (2d Dept. 2008); Cieri v. Cieri, 56 AD3d 409 (2d Dept. 2008). For example, in a case where the Family Court modified custody on the basis of controverted allegations of exposing the children to a sex offender, the Third Department found it necessary to remit the matter for a hearing. Spencer v. Spencer, 85 AD3d 1244 (3rd Dept. 2011).

Some Noted Exceptions

In Bibas v. Bibas, 62 AD3d 924 (2d Dept 2009), and Assini v. Assini, 11 AD3d 417 (2d Dept. 2004), the decision to change custody was based upon motion papers that included affidavits and exhibits. However, it is arguable that motion papers merely clarify the conflicting claims raised by the parties. Affidavits and exhibits, undoubtedly, are not an adequate substitute for a hearing.

Temporary custody was also changed in Rosenberg v. Rosenberg, 60 AD3d 658 (2d Dept. 2009), based upon motion papers. However, it should also be noted that, in this case, any possible injustice was mitigated by the fact that the Appellate Division had directed a re-trial on the issue of custody, and such re-trial was imminent.

An additional weakening of the hearing requirement was initiated by the Second Department decision in Matter of Smith v. Molody-Smith, 307 AD2d 364 (2d Dept. 2003). In that case, the court had held previous evidentiary proceedings and based its decision on what it had learned about the relationship between the mother and child in those proceedings. The danger is that trial courts will interpret this decision as substituting the court's “knowledge of the parties” or that particular judge's “history with this family” as a substitute for fact-finding based upon relevant evidence presented.

In Patterson v. Patterson, 92 AD3d 682 (2d Dept. 2012), the Second Department strayed even further from the hearing obligation. The court there determined that it is was possible for a court to acquire enough knowledge about a family through observation of the parents and an in camera interview of the child. This holding is problematic in several respects, the primary one being this: What record can be made of an “observation” of the parties?

Absent a detailed record, an appellate court cannot effectively review the trial court's impressions of the parties during the proceedings. Furthermore, behavior observed by the court during the proceedings may not be indicative of the relevant custodial issues, nor may it be predictive of the future ability to meet the child's needs. Similarly, basing a change of custody decision primarily upon an in camera interview of the child vitiates the hearing requirement by replacing a hearing with a closed proceeding that excludes the parties and their representatives.

The Supreme Court, Bronx County, highlighted the infirmities of the use of the in camera interview as a basis for custody modifications in LDM v. RA, 37 Misc. 3d 767 (S.Ct., Bronx Cty.2012). In that case, the mother sought to have the father's visitation rights severely curtailed because, she said, the child had told her the father drove at excessive speeds and had shoplifted some clothing from Macy's while with the child. The court conducted an in camera interview with the child concerning these allegations, during which it addressed questions to the child that had been composed by the parties' attorneys. The mother urged that her testimony concerning the child's out-of-court statements, along with the court's in camera interview and a T-shirt that the child allegedly told his mother his father had stolen from Macy's, should suffice to corroborate the child's statements. The court held that a father's visitation rights could not be diminished based upon hearsay statements of the child “corroborated in an in camera proceeding, that would also be based on the child's untested statements.” Instead, the court held that it must determine the accuracy of the child's statements “in some way ' during the course of the open hearing.” This could be through the child's in-court testimony, or through some other means, such as the testimony of Macy's security personnel.

The Third Department arrived at a similar conclusion by pointing out that an in camera interview where there is no fact-finding hearing is not a “Lincoln Hearing” as described in Lincoln v. Lincoln, 24 NY2d 270. (A Lincoln hearing is held during or after a fact-finding hearing to “corroborate information acquired during the fact-finding hearing. Justin CC, 77 AD3d 207,212 (3d Dept. 2010).) “There is no authority or legitimate purpose for courts to conduct such interviews in place of fact-finding hearings.” Spencer, 85 AD3d at 1245-1246).

A similar denial of the rights of the parties and of the child's right to a determination of his or her best interest attends substitution of attorney offers of proof for testimony. That was the conclusion of the Third Department, which, in Twiss v. Brennan, 82 AD3d 1533 (3d Dept. 2011), was asked to reconsider a court-ordered modification of a father's visitation rights.

That final order was made following a court appearance at which the attorney for the child orally requested that the father no longer be permitted to have unsupervised visits with the child, as he was allegedly improperly discussing custody matters with the child, who no longer wished to visit with him. The Third Department found that “[w]hile a temporary order pending a quickly scheduled evidentiary hearing would have been appropriate under these circumstances, making a final order based on the request or offer of proof of any of the attorneys present was totally in error, depriving the father of his fundamental right to a hearing.”

Conclusion

Modifying custody without a hearing directly contradicts the principle that custody must be decided on a case-by-case basis by analyzing certain factors germane to the best interests of the child. Freiderwitzer v. Friederwitzer, 81 AD2d 605 (2d Dept.1981), aff'd 55 NY2d' 89 (1982); Eschbach v. Eschbach, 56 NY2d 167 (1982). The fundamental rights of both parents and children are at stake in these situations; therefore, fairness to all parties requires courts to conduct evidentiary hearings when custody modifications are sought.

David M. Rosoff, a member of this newsletter's Board of Editors, is a partner in the firm of Carton & Rosoff PC, in White Plains.

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The idea that a change of custody should require a hearing is derived from the concept that children need continuity in their lives. By and large, the courts of New York have settled upon this requirement. However, the general rule has been eroded by New York decisions of the past decade, leaving the rights of' parents and children at risk.

A Hearing Is Obligatory in Most Instances'

The Appellate Division, Second Department, has held that it is reversible error for a court to change custody, “even temporarily,” without a hearing. Odeh v. Assad , 74 AD3d 1345 (2d Dept. 2010). In 2005, the Appellate Division, First Department, reversed a temporary change of custody granted without a hearing when the mother relocated with the child. Martin R.G. v. Ofelia G.O. , 24 AD3d 305 (1st Dept. 2005). A hearing is required in a non-emergency temporary change of custody; such a hearing may be narrow in scope, depending on the circumstances, and “may be as little as questioning the parties under oath by the court, subject to limited questioning by the lawyers.” Martin R.G., 24 AD3d at 306.

In Martin, the Family Court's “evident displeasure at the mother's move to New Jersey” was not sufficient to justify the temporary award of custody, without a hearing, to the father in the absence of an emergency or other “apparent basis for the order.” 24 AD3d at 306. The First Department has followed this rule, as seen in a 2012 decision in which it reversed a Family Court's temporary change of custody without a hearing after finding there was no emergency supporting the Family Court's failure to hold a hearing. Roger W. v. Samantha S. , 93 AD3d 743 (1st Dept. 2012). The appellate court further stated that the Family Court decision could not be supported by a substantial basis in the record, because it contained no testimony and the only evidence adduced was a home study indicating that there were factual disputes about the effects of the home environment on the child.

Although custody can be determined without a hearing when there are sufficient unchallenged facts in the record, there must be a hearing when there are “controverted allegations.” Carlin v. Carlin , 52 AD3d 559 (2d Dept. 2008); Cieri v. Cieri , 56 AD3d 409 (2d Dept. 2008). For example, in a case where the Family Court modified custody on the basis of controverted allegations of exposing the children to a sex offender, the Third Department found it necessary to remit the matter for a hearing. Spencer v. Spencer , 85 AD3d 1244 (3rd Dept. 2011).

Some Noted Exceptions

In Bibas v. Bibas , 62 AD3d 924 (2d Dept 2009), and Assini v. Assini , 11 AD3d 417 (2d Dept. 2004), the decision to change custody was based upon motion papers that included affidavits and exhibits. However, it is arguable that motion papers merely clarify the conflicting claims raised by the parties. Affidavits and exhibits, undoubtedly, are not an adequate substitute for a hearing.

Temporary custody was also changed in Rosenberg v. Rosenberg , 60 AD3d 658 (2d Dept. 2009), based upon motion papers. However, it should also be noted that, in this case, any possible injustice was mitigated by the fact that the Appellate Division had directed a re-trial on the issue of custody, and such re-trial was imminent.

An additional weakening of the hearing requirement was initiated by the Second Department decision in Matter of Smith v. Molody-Smith , 307 AD2d 364 (2d Dept. 2003). In that case, the court had held previous evidentiary proceedings and based its decision on what it had learned about the relationship between the mother and child in those proceedings. The danger is that trial courts will interpret this decision as substituting the court's “knowledge of the parties” or that particular judge's “history with this family” as a substitute for fact-finding based upon relevant evidence presented.

In Patterson v. Patterson , 92 AD3d 682 (2d Dept. 2012), the Second Department strayed even further from the hearing obligation. The court there determined that it is was possible for a court to acquire enough knowledge about a family through observation of the parents and an in camera interview of the child. This holding is problematic in several respects, the primary one being this: What record can be made of an “observation” of the parties?

Absent a detailed record, an appellate court cannot effectively review the trial court's impressions of the parties during the proceedings. Furthermore, behavior observed by the court during the proceedings may not be indicative of the relevant custodial issues, nor may it be predictive of the future ability to meet the child's needs. Similarly, basing a change of custody decision primarily upon an in camera interview of the child vitiates the hearing requirement by replacing a hearing with a closed proceeding that excludes the parties and their representatives.

The Supreme Court, Bronx County, highlighted the infirmities of the use of the in camera interview as a basis for custody modifications in LDM v. RA , 37 Misc. 3d 767 (S.Ct., Bronx Cty.2012). In that case, the mother sought to have the father's visitation rights severely curtailed because, she said, the child had told her the father drove at excessive speeds and had shoplifted some clothing from Macy's while with the child. The court conducted an in camera interview with the child concerning these allegations, during which it addressed questions to the child that had been composed by the parties' attorneys. The mother urged that her testimony concerning the child's out-of-court statements, along with the court's in camera interview and a T-shirt that the child allegedly told his mother his father had stolen from Macy's, should suffice to corroborate the child's statements. The court held that a father's visitation rights could not be diminished based upon hearsay statements of the child “corroborated in an in camera proceeding, that would also be based on the child's untested statements.” Instead, the court held that it must determine the accuracy of the child's statements “in some way ' during the course of the open hearing.” This could be through the child's in-court testimony, or through some other means, such as the testimony of Macy's security personnel.

The Third Department arrived at a similar conclusion by pointing out that an in camera interview where there is no fact-finding hearing is not a “ Lincoln Hearing” as described in Lincoln v. Lincoln , 24 NY2d 270. (A Lincoln hearing is held during or after a fact-finding hearing to “corroborate information acquired during the fact-finding hearing. Justin CC, 77 AD3d 207,212 (3d Dept. 2010).) “There is no authority or legitimate purpose for courts to conduct such interviews in place of fact-finding hearings.” Spencer, 85 AD3d at 1245-1246).

A similar denial of the rights of the parties and of the child's right to a determination of his or her best interest attends substitution of attorney offers of proof for testimony. That was the conclusion of the Third Department, which, in Twiss v. Brennan , 82 AD3d 1533 (3d Dept. 2011), was asked to reconsider a court-ordered modification of a father's visitation rights.

That final order was made following a court appearance at which the attorney for the child orally requested that the father no longer be permitted to have unsupervised visits with the child, as he was allegedly improperly discussing custody matters with the child, who no longer wished to visit with him. The Third Department found that “[w]hile a temporary order pending a quickly scheduled evidentiary hearing would have been appropriate under these circumstances, making a final order based on the request or offer of proof of any of the attorneys present was totally in error, depriving the father of his fundamental right to a hearing.”

Conclusion

Modifying custody without a hearing directly contradicts the principle that custody must be decided on a case-by-case basis by analyzing certain factors germane to the best interests of the child. Freiderwitzer v. Friederwitzer , 81 AD2d 605 (2d Dept.1981), aff'd 55 NY2d' 89 (1982); Eschbach v. Eschbach , 56 NY2d 167 (1982). The fundamental rights of both parents and children are at stake in these situations; therefore, fairness to all parties requires courts to conduct evidentiary hearings when custody modifications are sought.

David M. Rosoff, a member of this newsletter's Board of Editors, is a partner in the firm of Carton & Rosoff PC, in White Plains.

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