Appellate Division of the Supreme Court of New York, 2007

David A.A. v. Maryann A.

Appellate Division of the Supreme Court of New York · Decided June 8, 2007

41 A.D.3d 1300; 837 N.Y.S.2d 479

Cases that cite this one

12 later published cases cite this decision.

Matter of Jayden M. (Carlos M.) (Appellate Division of the Supreme Court of New York 2025)
Matter of Reardon v. Krause (Appellate Division of the Supreme Court of New York 2023)
Matter of Hilton v. Hilton (Appellate Division of the Supreme Court of New York 2019)
MILLS, ALLYSON A. v. RIEMAN, JOEL T. (Appellate Division of the Supreme Court of New York 2015)
MANNING, KATHLEEN S. v. SOBOTKA, STANLEY P. (Appellate Division of the Supreme Court of New York 2013)
ERIE COUNTY DEPARTMENT OF SOCIAL SE, RVICES v. THOMPSON, ANDREW R. (Appellate Division of the Supreme Court of New York 2012)
Erie County Department of Social Services ex rel. Wiser v. Thompson (Appellate Division of the Supreme Court of New York 2012)
Balls v. Doliver (Appellate Division of the Supreme Court of New York 2010)
In re Isaiah H. (Appellate Division of the Supreme Court of New York 2009)
Pollard v. Pollard (Appellate Division of the Supreme Court of New York 2009)
Kenneth M. v. Monique M. (Appellate Division of the Supreme Court of New York 2008)
Hopkins v. Gelia (Appellate Division of the Supreme Court of New York 2008)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Appeal from an order of the Family Court, Livingston County (Ronald A. Cicoria, J.), entered September 6, 2005 in a proceeding pursuant to Family Court Act article 6. The order granted petitioner’s motion for a default order and awarded sole legal custody of the parties’ child to petitioner and visitation to respondent.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs, petitioner’s motion is denied and the matter is remitted to Family Court, Livingston County, for a hearing on the petition.

Memorandum: Family Court erred in granting petitioner’s motion for a default order awarding sole legal custody of the parties’ child to petitioner. Respondent’s failure to appear at the hearing on the petition does not automatically constitute a default (see Matter of Shemeco D., 265 AD2d 860 [1999]; Matter of Kwasi S., 221 AD2d 1029 [1995]), particularly “where, as here, respondent[ ] did appear by [her] assigned counsel who objected to petitioner’s default motion and who, given the opportunity, could have proceeded to a hearing and defended [her] absent client[ ]” (Matter of Cassandra M., 260 AD2d 961, 963 [1999]). Moreover, “[ujnless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of the child[ ]’s best interests . . . , a determination of a custody matter should only be made after a full evidentiary hearing” (Miller-Glass v Glass, 237 AD2d 723, 724 [1997]). The record does not contain sufficient evidence supporting the award of sole legal custody to petitioner. We therefore reverse the or*1301der, deny petitioner’s motion and remit the matter to Family Court for a hearing on the petition. Present—Hurlbutt, J.P., Martoche, Smith, Fahey and Green, JJ.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.