Wile v. Wile

—Order unanimously reversed on the law without costs, petition denied and matter remitted to Niagara County Family Court for further proceedings. Memorandum: From our review of the record, we conclude that the determination of Family Court to change custody lacks a sound and substantial basis (see, Matter of Aylesworth v Aylesworth, 207 AD2d 970, 971). The court erred in refusing to allow respondent’s attorney to re-examine the Child Protective Ser 1019 vices caseworker after respondent’s attorney had an opportunity to review reports used by the caseworker to refresh his recollection during direct examination (see, Chabica v Schneider, 213 AD2d 579, 580-581). Given the seriousness of the charges in the reports and the weight given the caseworker’s testimony, the court’s denial of respondent’s request constitutes prejudicial error (see, Chabica v Schneider, supra). Furthermore, most of the evidence at the custody hearing relied upon by the court was based upon events that occurred prior to the divorce judgment. Because of the length of time since the custody hearing and our lack of knowledge concerning the present circumstances of the parties, we remit the matter to Niagara County Family Court for a new hearing. (Appeal from Order of Niagara County Family Court, Halpin, J.—Custody.) Present—Green, J. P., Lawton, Hayes, Callahan and Fallon, JJ.