Brice v. Mitchell

Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: Family Court erred in receiving into evidence, over respondent’s objection, reports prepared by the Probation Department and the Forensic Mental Health Service. In a custody proceeding, "professional reports and independent investigations by the Trial Judge entail too many risks of error to permit their use without the parties’ consent” (Matter of Lincoln v Lincoln, 24 NY2d 270, 273; see also, Kesseler v Kesseler, 10 NY2d 445; Matter of Bauer v Bauer, 88 AD2d 737; Isaacs v Murcin, 38 AD2d 673). Because the court relied on the material in these reports, the order is reversed and the matter is remitted to Family Court for a new hearing. Although not raised by the parties, we note that the court considered the report of the law guardian, submitted after testimony was concluded. The report included statements of fact that were inadmissible hearsay, and the court should not have relied on it to support its finding that the child desired to remain with her father, which the court stated "tipped the balance” in his favor. The court never interviewed the child. Although the issue of whether the court erred in failing to conduct an in-camera interview of the child was not preserved for our review, at the rehearing the better practice would be for the court to conduct an in-camera interview of the child (see, Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117). Pending a new determination, custody shall remain with petitioner and visitation shall continue in accordance with the order appealed from. (Appeal from Order of Erie County Family Court, O’Donnell, J. — Custody.) Present — Callahan, J. P., Green, Pine, Lawton and Davis, JJ.