Grotke v. Harris

—Appeal from an order of Supreme Court, Erie County (Marshall, J.), entered January 4, 2002, which, inter alia, granted defendant’s application to change custody of the parties’ children from plaintiff to defendant. It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, temporary custody of the children is awarded to defendant pending further order of Supreme Court, Erie County, and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following Memorandum: Supreme Court erred in granting defendant’s application to change custody from plaintiff to defendant without conducting a hearing to determine the best interests of the children (see Matter of Smith v Smith, 231 AD2d 896; Matter of Goodwin v Goodwin, 193 AD2d 1138). Although the allegations in defendant’s affidavit are sufficient to warrant a hearing (cf. Matter of Chittick v Farver, 279 AD2d 673, 675), there is no support in the record for defendant’s contention that “the court ha[d] sufficient information to undertake a comprehensive independent review of the children’s best interests” in the 958 absence of a hearing (id.; cf. Matter of Glenn v Glenn, 262 AD2d 885, 886-887, lv denied in part and dismissed in part 94 NY2d 782). Furthermore, we conclude that the failure of the court to appoint a law guardian for the children in this contested matter was an improvident exercise of discretion (see Vecchiarelli v Vecchiarelli, 238 AD2d 411, 413; Koppenhoefer v Koppenhoefer, 159 AD2d 113, 117; see also Smith, 231 AD2d at 896). We therefore reverse the order and remit the matter to Supreme Court, Erie County, for a hearing before a different justice. Because the children are currently enrolled in school, temporary custody of the children is awarded to defendant pending further order of Supreme Court, Erie County. Present—Pigott, Jr., P.J., Green, Wisner, Scudder and Kehoe, JJ.