At page 1300 “failure to appear in person at the hearing on a petition does not automatically constitute a default”7 citing cases
- Matter of Jayden M. (Carlos M.), 2025 NY Slip Op 02490 (N.Y. App. Div. 4th Dep't 2025).published Thus, it is well established that a party's "failure to appear [in person] at the hearing on [a] petition does not automatically constitute a default" ( Matter of David A.A. v Maryann A. , 41 AD3d 1300, 1300 [4th Dept 2007]; see Matter of…
- Matter of Reardon v. Krause, 2023 NY Slip Op 04880 (N.Y. App. Div. 4th Dep't 2023).publishedThus, a party's "failure to appear [in person] at the hearing on [a] petition does not automatically constitute a default" ( Matter of David A.A. v Maryann A. , 41 AD3d 1300, 1300 [4th Dept 2007]; see e.g.
- Manning, Kathleen S. v. Sobotka, Stanley P., 107 A.D.3d 1638 (N.Y. App. Div. 4th Dep't 2013).publishedAl *1639 though respondent did not appear before the Support Magistrate on the scheduled date for the hearing, his attorney had previously made a written request for an adjournment and appeared in court on the date of the hearing to reiter…
- Balls v. Doliver, 72 A.D.3d 1618 (N.Y. App. Div. 4th Dep't 2010).publishedSecond, the court erred in granting the petition without conducting an evidentiary hearing. “ ‘[Ujnless there is sufficient evidence before the court to enable it to undertake a comprehensive independent review of the [child]’s best intere…
- In re Isaiah H., 61 A.D.3d 1372 (N.Y. App. Div. 4th Dep't 2009).publishedThe mother’s failure to appear at the fact-finding hearing on the issue of permanent neglect “does not automatically constitute a default,” in view of the fact that the attorney for the mother appeared on her behalf and requested an adjour…
- Matter of Hilton v. Hilton, 2019 NY Slip Op 4572 (N.Y. App. Div. 4th Dep't 2019).publishedWhere, as here, "a party fails to appear [in court on a scheduled date] but is represented by counsel, the order is not one entered upon the default of the aggrieved party and appeal is not precluded" ( Matter of Pollard v Pollard , 63 AD3…
- Mills, Allyson a. v. Rieman, Joel T., 128 A.D.3d 1486 (N.Y. App. Div. 4th Dep't 2015).publishedAlthough the record contains sufficient evidence to establish that “[t]he relationship of the parties had deteriorated to such an extent that [the existing joint custody arrangement] was no longer feasible” (Matter of Thayer v Ennis, 292 A…
Other citing cases
- Erie Cnty. Dep't of Soc. Servs. ex rel. Wiser v. Thompson, 91 A.D.3d 1327 (N.Y. App. Div. 4th Dep't 2012).published
- Erie Cnty. Dep't of Soc. Se, Rvices v. Thompson, Andrew R., No. CAF 11-00568 (N.Y. App. Div. 4th Dep't Jan. 31, 2012).published
- Pollard v. Pollard, 63 A.D.3d 1628 (N.Y. App. Div. 4th Dep't 2009).published
- Hopkins v. Gelia, 56 A.D.2d 1286 (N.Y. App. Div. 4th Dep't 2008).published
v.
Maryann A.
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[*1301] der, 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.