O'Brien v. O'Brien

In a custody proceeding, the father appeals from an order of the Family Court, Suffolk County (Snellenburg, J.), entered May 22, 1981, which awarded custody of the children to the petitioner mother. Order reversed, without costs or disbursements, and matter remanded to the Family Court for further proceedings consistent herewith. Upon determining that the father’s motion to dismiss the instant proceeding was without merit, the Family Court *612immediately proceeded to conduct an inquest concerning the custody of the children notwithstanding the fact that neither the father nor his attorney was present. There was no indication in the record that the father was aware that if his motion were denied the hearing would be held on the same day (see Matter of Lefkowitz v Therapeutic Hypnosis, 52 AD2d 1017). Under the circumstances there should be a reversal and a remand for a hearing on the custody issue. Lazer, J. P., Gibbons, Cohalan and Bracken, JJ., concur.