Benedict v. Zimmer

In a child custody and visitation proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Richmond County (Boggio, R.), dated June 27, 2000, as awarded custody of the child to the father, and directed that her visitation would be supervised and take place in Pennsylvania. Ordered that the order is reversed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Richmond County, for a hearing on the issue of custody and a de novo determination of the father’s petition for a change of custody; and it is further, Ordered that the provisions of the order dated June 27, 2000 shall remain in effect pending the new determination. It was error for the Family Court to issue an order concerning custody and visitation based on controverted allegations without conducting a full evidentiary hearing (see Biagi v Biagi, 124 AD2d 770). Moreover, a custody determination should be made upon consideration of all of the circumstances to reach the disposition that promotes the best interests of the child (see Metzger v Metzger, 240 AD2d 642). Accordingly, we remit the matter for a hearing where the parties and the Law Guardian can present their evidence. O’Brien, J.P., Krausman, Schmidt and Cozier, JJ., concur.