Emerson v. Nickerson

Mikoll, J. Appeal from an amended order of the Family Court of Otsego County (Nydam, J.), entered March 18, 1993, which granted petitioner’s application, in a proceeding pursuant to Family Court Act article 6, for custody of the parties’ child. [900] The discrete issue before us is whether Family Court erred in resolving custody and visitation issues without granting petitioner’s request for counsel and without conducting an evidentiary hearing on the question of visitation by respondent with the then 2 Vi-year-old child of the unwed couple. Family Court awarded custody to petitioner and proceeded to award respondent extensive visitation with the couple’s daughter over petitioner’s objection without permitting petitioner to fully explain the reasons for her objection. The petition before the court indicated that the child lived with the parents for a very brief time, that she has been with petitioner from birth, that petitioner has been the child’s primary caretaker and that respondent has shown little interest in the child. It was error in these circumstances to decide the visitation issue without a hearing and in the absence of counsel for petitioner (see, Saborio v Saborio, 147 AD2d 468, 470; Patricia L. v Steven L., 119 AD2d 221, 224-225; see also, Mosesku v Mosesku, 108 AD2d 795). Petitioner’s request in her brief to be afforded an opportunity to apply for assignment of counsel as a poor person and a hearing should be granted. Respondent did not object to the award of custody to petitioner and has not appealed or responded to petitioner’s brief. Cardona, P. J., Mercure, Casey and Weiss, JJ., concur. Ordered that the amended order is modified, on the law, without costs, by reversing so much thereof as granted visitation to respondent; matter remitted to the Family Court of Otsego County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.