Are you looking for an award of Sole Legal Custody?
An award of sole legal custody in New York generally requires a hearing with taking of testimony and evidence in support of your case. In contrast with a proper entry of an interim emergency residential or visitation order, an interim award of sole legal custody (decision making) on sharply controverted affidavits without a hearing is error as a matter of law. In the case of Khan v. Dolly, 6 A.D.3d 437, 439, 774 N.Y.S.2d 365 the Second Department held, in pertinent part, that:
“….The law is well settled that, as a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing (see Matter of Hudgins v Goodley, 301 AD2d 524 [2003]; Matter of Klang v Klang, 235 AD2d 476 [1997]). The record contains controverted allegations, inter alia, that the mother was jeopardizing the child’s health and the father was alienating the child from his mother. Moreover, reliance upon professional reports [such as the Mother’s attached LCSW letter] without the consent of the parties is impermissible, since such reports contain inadmissible hearsay (see Wilson v Wilson, 226 AD2d 711 [1996]; Matter of Brice v Mitchell, 184 AD2d 1008 [1992])….”.
The question of whether an interim legal custody determination pending the trial date requires a hearing was resolved by the Court of Appeals in 2016 in S.L. v. J.R., 27 N.Y.3d 558, 56 N.E.3d 193, 36 N.Y.S.3d 411 (2016.) That decision advanced two important rules. First, in essence, it abrogated the old ”adequate relevant information” standard, which your Affirmant would argue does not apply to the case at bar, given the absence of evidence before the Court going beyond the diametrically opposed versions of events submitted to the Court on paper. Moreover, in reversing both the Second Department and the trial court, the Court of Appeals noted the second rule, that ”[ o]ur precedent makes clear that custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry’.”
This decision is from the highest Court of New York so it can be depended upon. However, this is not legal advice and provided for information purposes only.
By: Lisa Beth Older, Esq.
Your Manhattan Divorce Lawyer