Savoca v. Bellofatto, 104 A.D.3d 695 (N.Y. App. Div. 2013). · Go Syfert
Savoca v. Bellofatto, 104 A.D.3d 695 (N.Y. App. Div. 2013). Cases Citing This Book View Copy Cite
27 citation events (27 in the last 25 years) across 2 distinct courts.
Strongest positive: DiBella v. DiBella (nyappdiv, 2018-05-03)
Treatment trajectory · 2013 → 2026 · click a year to view as-of
2013 2019 2026
Top citers, strongest first. 14 distinct citers. How cited ↗
discussed Cited as authority (rule) DiBella v. DiBella
N.Y. App. Div. · 2018 · confidence medium
In the absence of the requisite statutory advisement of her right to counsel ( see Family Ct Act § 262 [a] [v]) or a valid waiver of such right ( see Matter of Hassig v Hassig , 34 AD3d 1089, 1090-1091 [2006]), we find that the mother was deprived of her fundamental right to counsel ( see Family Ct Act §§ 261, 262 [a] [v]; Judiciary Law § 35 [8]; Matter of Grayson v Fenton , 8 AD3d at 696 ; Matter of Lee v Stark , 1 AD3d at 815-816 ; see also Matter of Charbonneau v Charbonneau , 151 AD3d 1060, 1061 [2017]; Matter of Savoca v Bellofatto , 104 AD3d 695, 696-697 [2013]; Matter of David VV. ,…
discussed Cited as authority (rule) Greenberg v. Greenberg
N.Y. App. Div. · 2016 · confidence medium
Section 262 (a) (v) of the Family Court Act confers the right to the assistance of counsel upon “the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding before the court in which the court has jurisdiction to determine such custody.” Such a parent has the right to be represented by counsel of his or her own choosing and must be accorded a reasonable opportunity to select and retain his or her counsel (see Matter of Savoca v Bellofatto, 104 AD3d 695, 697 [2013]; see also People v Milord, 115 AD3d 774,…
discussed Cited as authority (rule) Matter of Yu Chao Tan v. Hong Shan Kuang
N.Y. App. Div. · 2016 · confidence medium
“Generally, the determination of a custody issue can only be resolved after a full and comprehensive hearing, and a careful analysis of the applicable factors to be considered in determining what custody arrangement will further the child’s best interests” (Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013] [internal quotation marks omitted]).
discussed Cited as authority (rule) Matter of Moiseeva v. Sichkin
N.Y. App. Div. · 2015 · confidence medium
Although the father had the right to the *975 assistance of counsel as a respondent in a custody proceeding pursuant to Family Court Act article 6 (see Family Ct Act § 262 [a]; Matter of Savoca v Bellofatto, 104 AD3d 695, 696-697 [2013]; Matter of Rosof v Mallory, 88 AD3d 802, 802 [2011]; Matter of Collier v Norman, 69 AD3d 936, 937 [2010]), the Family Court properly determined that the father was not financially eligible for a court-appointed attorney.
discussed Cited as authority (rule) S.L. v. J.R.
N.Y. App. Div. · 2015 · confidence medium
Although a custody determination generally may only be made following a full and comprehensive evidentiary hearing (see Obey v Degling, 37 NY2d 768, 769-770 [1975]; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013]; Matter of Peek v Peek, 79 AD3d 753 [2010]; Matter of Nalty v Kong, 59 AD3d 723 [2009]), no hearing is necessary where, as here, “the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest” (Matter of Hom v Zullo, 6 AD3d 536, 536 [2004]; see Matter of Lazo v Cherrez, 121 AD3d 1002 [2014];…
discussed Cited as authority (rule) S.L. v. J.R.
N.Y. App. Div. · 2015 · confidence medium
Although a custody determination generally may only be made following a full and comprehensive evidentiary hearing (see Obey v Degling, 37 NY2d 768, 769-770 [1975]; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013]; Matter of Peek v Peek, 79 AD3d 753 [2010]; Matter of Nalty v Kong, 59 AD3d 723 [2009]), no hearing is necessary where, as here, “the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child’s best interest” (Matter of Hom v Zullo, 6 AD3d 536, 536 [2004]; see Matter of Lazo v Cherrez, 121 AD3d 1002 [2014];…
discussed Cited as authority (rule) Mandal v. Mandal
N.Y. App. Div. · 2014 · confidence medium
Under the circumstances presented here, it cannot be concluded that the Family Court possessed sufficient information to render an informed determination as to the best interests of the subject children (see Matter of Labella v Murray, 108 AD3d at 548 ; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013]; Matter of Perez v Estevez, 82 AD3d at 1106 ; Matter of Peek v Peek, 79 AD3d at 754 ).
discussed Cited as authority (rule) Mandal v. Mandal
N.Y. App. Div. · 2014 · confidence medium
Under the circumstances presented here, it cannot be concluded that the Family Court possessed sufficient information to render an informed determination as to the best interests of the subject children (see Matter of Labella v Murray, 108 AD3d at 548 ; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013]; Matter of Perez v Estevez, 82 AD3d at 1106 ; Matter of Peek v Peek, 79 AD3d at 754 ).
discussed Cited as authority (rule) Archibald M. v. Georgette S.
N.Y. App. Div. · 2013 · confidence medium
“Generally, the determination of a custody issue can only be resolved after a full and comprehensive hearing, and a careful analysis of the applicable factors to be considered in determining what custody arrangement will further the child[ren]’s best interests” (Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013] [internal quotation marks omitted]; see Matter of Zaratzian v Abadir, 105 AD3d 1054 [2013]; Matter of Swinson v Brewington, 84 AD3d 1251, 1253 [2011]).
discussed Cited as authority (rule) Archibald M. v. Georgette S.
N.Y. App. Div. · 2013 · confidence medium
“Generally, the determination of a custody issue can only be resolved after a full and comprehensive hearing, and a careful analysis of the applicable factors to be considered in determining what custody arrangement will further the child[ren]’s best interests” (Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013] [internal quotation marks omitted]; see Matter of Zaratzian v Abadir, 105 AD3d 1054 [2013]; Matter of Swinson v Brewington, 84 AD3d 1251, 1253 [2011]).
discussed Cited as authority (rule) In re Ender M. Z.-P.
N.Y. App. Div. · 2013 · confidence medium
However, unlike our determination with regard to the petition seeking custody of Orianne, we conclude that, with respect to the custody of Darryl, the Family Court did not have before it sufficient evidence to render “an informed determination consistent with the child’s best interests” (Matter of Peek v Peek, 79 AD3d 753, 754 [2010]; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013]; Matter of Rovenia G.M. v Lesley P.A., 44 AD3d 942 [2007]).
discussed Cited as authority (rule) In re Ender M. Z.-P.
N.Y. App. Div. · 2013 · confidence medium
However, unlike our determination with regard to the petition seeking custody of Orianne, we conclude that, with respect to the custody of Darryl, the Family Court did not have before it sufficient evidence to render “an informed determination consistent with the child’s best interests” (Matter of Peek v Peek, 79 AD3d 753, 754 [2010]; Matter of Savoca v Bellofatto, 104 AD3d 695, 696 [2013]; Matter of Rovenia G.M. v Lesley P.A., 44 AD3d 942 [2007]).
discussed Cited as authority (rule) Feliciano v. King
N.Y. App. Div. · 2013 · confidence medium
The range of the court’s discretion is narrowed where a fundamental right such as the right to counsel in a matter involving custody of a child is involved (see Matter of Savoca v Bellofatto, 104 AD3d 695, 697 [2013]; Matter of Evan F., 29 AD3d 905, 907 [2006]; Matter of Sullivan v Sullivan, 24 AD3d 455, 456 [2005]; Matter of Vidal v Mintzer, 309 AD2d 756, 758 [2003]).
discussed Cited as authority (rule) Feliciano v. King
N.Y. App. Div. · 2013 · confidence medium
The range of the court’s discretion is narrowed where a fundamental right such as the right to counsel in a matter involving custody of a child is involved (see Matter of Savoca v Bellofatto, 104 AD3d 695, 697 [2013]; Matter of Evan F., 29 AD3d 905, 907 [2006]; Matter of Sullivan v Sullivan, 24 AD3d 455, 456 [2005]; Matter of Vidal v Mintzer, 309 AD2d 756, 758 [2003]).
Retrieving the full opinion text from the archive…
In the Matter of Kimberly Savoca
v.
John Bellofatto
Appellate Division of the Supreme Court of the State of New York.
Mar 6, 2013.
104 A.D.3d 695
Cited by 21 opinions  |  Published

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Boggio, Ct. Atty. Ref.), dated February 27, 2012,[*696] which, without a hearing, awarded the mother sole legal and physical custody of the parties’ child.

Ordered that the order is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for an evidentiary hearing on the issue of custody and visitation, and a new determination thereafter.

“An award of custody must be based upon the best interests of the child, and there is no right of either parent to custody of the child” (Matter of Peek v Peek, 79 AD3d 753, 753-754 [2010]; see Domestic Relations Law § 70 [a]; Friederwitzer v Friederwitzer, 55 NY2d 89, 93 [1982]; Matter of Francois v Hall, 73 AD3d 1055 [2010]). “Generally, the determination of a custody issue can only be resolved after a full and comprehensive hearing, and a careful analysis of the applicable factors to be considered in determining what custody arrangement will further the child’s best interests” (Matter of Nalty v Kong, 59 AD3d 723, 724 [2009]; see Obey v Degling, 37 NY2d 768, 769-770 [1975]; Matter of Peek v Peek, 79 AD3d at 753-754; Audubon v Audubon, 138 AD2d 658, 658-659 [1988]).

Here, contrary to the statement in the order appealed from to the effect that a hearing had been held, the mother’s petition for custody was granted without a hearing. In addition, the Family Court did not conduct an examination of the parties or obtain a forensic report from an expert. Although the Family Court did ask the attorney for the child for an argument on behalf of her two-year-old client, the attorney for the child stated that a social worker from her office would be sent to visit the child, but this had not yet been done when the order was issued. Under these circumstances, “it cannot be concluded that the court possessed sufficient information to render an informed determination consistent with the child’s best interests” (Matter of Peek v Peek, 79 AD3d at 754; see Matter of Perez v Estevez, 82 AD3d 1106, 1106-1107 [2011]; Matter of Nalty v Kong, 59 AD3d at 724; Matter of Roldan v Nieves, 51 AD3d 803, 805 [2008]; cf. Matter of Feldman v Feldman, 79 AD3d 871 [2010]). Since there was no hearing, the court also failed to make “specific findings of fact with respect to the issue of custody,” as it is required to do (Audubon v Audubon, 138 AD2d at 659; see Mauter v Mauter, 309 AD2d 737, 738 [2003]).

The order must be reversed and the matter remitted for an evidentiary hearing not only for the reasons stated above, but for the additional reason that the father effectively was deprived of his statutory right to counsel (see Family Ct Act § 262 [a] [v]). Section 262 (a) (v) of the Family Court Act confers the[*697] right to the assistance of counsel upon “the parent of any child seeking custody or contesting the substantial infringement of his or her right to custody of such child, in any proceeding before the court in which the court has jurisdiction to determine such custody.” The statute further provides that “[w]hen such person first appears in court, the judge shall advise such person before proceeding that he or she has the right to be represented by counsel of his or her own choosing, of the right to have an adjournment to confer with counsel, and of the right to have counsel assigned by the court in any case where he or she is financially unable to obtain the same” (Family Ct Act § 262 [a]). “The deprivation of a party’s right to counsel guaranteed by this statute ‘requires reversal, without regard to the merits of the unrepresented party’s position’ ” (Matter of Collier v Norman, 69 AD3d 936, 937 [2010], quoting Matter of Brown v Wood, 38 AD3d 769, 770 [2007]; see Matter of Rosof v Mallory, 88 AD3d 802, 802-803 [2011]). Here, at the start of the proceeding, the Family Court acknowledged that, prior thereto, the father’s attorney had requested an adjournment “to at least consider whether she want[ed] to continue representing [the father].” Nonetheless, the court proceeded to determine the custody issue without a hearing. Moreover, the court neither advised the father of his right to an attorney, nor advised him of his right to an adjournment to obtain new counsel, notwithstanding a statement to the contrary contained in the order appealed from. An attorney from the office of the father’s counsel was apparently present when the court rendered its determination, but she did not appear to be representing the father. While “adjournments are within the discretion of the trial court” the “range of that discretion is narrowed . . . where a fundamental right such as the right to counsel is involved” (Matter of Patricia L. v Steven L., 119 AD2d 221, 226 [1986] [citations omitted]). Under the circumstances presented here, “[i]nstead of directing the matter to go forward, the Family Court should have exercised its discretion to grant an adjournment” (Matter of Doino v Cartelli, 77 AD3d 830, 831 [2010]) to permit the father to reach an understanding with his counsel, or to obtain new counsel. Dillon, J.E, Dickerson, Leventhal and Hinds-Radix, JJ., concur.