This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 93
S.L. (Anonymous),
            Appellant,
        v.
J.R. (Anonymous),
            Respondent.




          Harold R. Burke, for appellant.
          Respondent pro se.
          John A. Pappalardo, for the children.
          Domestic Violence Legal Empowerment and Appeals Project
et al., amici curiae.




GARCIA, J.:
          This case requires that we consider whether Supreme
Court properly made a final custody determination without first
conducting a plenary hearing.   We hold that, on this record, a
hearing was required.
          After nearly 15 years of marriage, appellant S.L.

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(Mother) commenced divorce proceedings against respondent J.R.
(Father), seeking full custody of their two minor children.
Shortly thereafter, Father filed an order to show cause seeking
temporary sole legal custody of the children, alleging that he
feared for their safety based on a series of alleged incidents
involving harassment, extramarital affairs, and abuse of alcohol
and prescription medication by Mother.   Supreme Court granted
Father temporary sole interim legal and physical custody of the
children and provided for supervised visitation for Mother.
After receiving responsive papers from Mother and the Attorney
for the Children, the court issued a second order continuing the
interim award of custody for Father and supervised visitation for
Mother.
          The court later received the report of a court-
appointed forensic evaluator, who concluded that Father was the
more "psychologically stable" of the two parents.   During a
subsequent appearance, the court set a briefing schedule and
stated that it "may also be in a position to determine custody
sua sponte, based on [the] information in this case."   The
parties submitted letter briefs regarding Father's requested
relocation and the court's ability to grant custody to Father
without a hearing.
          One month later, the court resolved the custody portion
of the parties' dispute:   Father was awarded sole legal and
physical custody of the children.   With regard to visitation, the


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court noted that, although "the parties plan[ned] to continue to
make attempts at reinstating therapeutic or supervised
visitation," both visitation and family therapy had been
"suspended" for more than five months.    The court did not conduct
an evidentiary hearing, remarking that a hearing was "not
necessary in these circumstances since the allegations are not
controverted."   Specifically, the court noted that Mother
"acknowledged her involvement in many incidents of disturbing
behavior."   The court also cited the opinions of the family
therapist, the court-appointed forensic evaluator, and the agency
supervising visitation in support of its determination.
          The Appellate Division unanimously affirmed (S.L. v
J.R., 126 AD3d 682 [2d Dept 2015]).     The court noted that custody
determinations "generally may only be made following a full and
comprehensive evidentiary hearing," but held that "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'" (id. at 682).
Pointing to "the parties' affidavits and the reports prepared by
the court-appointed forensic evaluator," the court reasoned that
Mother "admits" Father's allegations "regarding her emotionally
destructive and sometimes violent behavior toward him and the
parties' two children" (id.).   In addition, "the forensic
evaluator, who interviewed the parties and the subject children,
concluded that [Father] was the more stable parent, and that


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[Father] was able to make sound parenting decisions for the
children" (id.).   The court also noted that "the attorney for the
children supported the award of custody" to Father (id.).
          We granted leave to appeal and now reverse.
          It is well-settled that parents have a fundamental
right to custody of their children (Santosky v Kramer, 455 US
745, 753-754 [1982]; Matter of Ella B., 30 NY2d 352, 357 [1972]).
However, in child custody determinations, neither parent has a
"prima face right to the custody of the child" (Domestic
Relations Law § 70[a]).   Instead, in assessing questions of child
custody, courts must "make every effort to determine what is for
the best interest of the child, and what will best promote its
welfare and happiness" (Eschbach v Eschbach, 56 NY2d 167, 171
[1982] [internal quotation marks and citations omitted]).    In all
custody disputes between divorced parents, "the first concern of
the court is and must be the welfare and the interests of the
children" (Lincoln v Lincoln, 24 NY2d 270, 271-272 [1969]).    The
interests of the children are always "paramount" and the "rights
of their parents must, in the case of conflict, yield to that
superior demand" (id. at 272).
          Our precedent makes clear that custody determinations
should "[g]enerally" be made "only after a full and plenary
hearing and inquiry" (Obey v Degling, 37 NY2d 768, 770 [1975]).
This general rule furthers the substantial interest, shared by
the state, the children, and the parents, in ensuring that


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custody proceedings generate a just and enduring result that,
above all else, serves the best interest of a child.   Wherever
possible, "[c]ustody of children should be established on a long-
term basis"; "children should not be shuttled back and forth
between divorced parents" merely because of changed circumstances
"so long as the custodial parent has not been shown to be unfit"
(id. at 770).   Given the goals of stability and permanency, as
well as the weight of the interests at stake, the societal cost
of even an occasional error in a custody proceeding is sizeable.
Custody determinations therefore require a careful and
comprehensive evaluation of the material facts and circumstances
in order to permit the court to ascertain the optimal result for
the child.   The value of a plenary hearing is particularly
pronounced in custody cases in light of the subjective factors --
such as the credibility and sincerity of the witnesses, and the
character and temperament of the parents -- that are often
critical to the court's determination.
           But in light of our guiding principle -- the best
interest of the child -- there can be "no absolutes" in child
custody cases (Eschbach, 56 NY2d at 171; Friederwitzer v
Friederwitzer, 55 NY2d 89, 93 [1982]).   Custody determinations
must be "entrusted to the sound discretion of the trial court"
(Matter of Jewish Child Care Ass'n of New York, 5 NY2d 222, 228
[1959]).   Accordingly, the "general" right to a hearing in
custody cases is not an absolute one.


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           Here, the Appellate Division upheld Supreme Court's
decision not to conduct an evidentiary hearing based on its
determination that the court possessed "adequate relevant
information to enable it to make an informed and provident
determination as to the child's best interest."   This holding was
error.
           The undefined and imprecise "adequate relevant
information" standard applied by the courts below tolerates an
unacceptably-high risk of yielding custody determinations that do
not conform to the best interest of a child -- the first and
paramount concern of the court.   Nor does this standard
adequately protect a parent whose fundamental right -- the right
"to control the upbringing of a child" (Matter of Adoption of
Maxwell, 4 NY2d 429, 439 [1958]) -- hangs in the balance.    For
instance, in rendering a final custody award without a hearing,
Supreme Court appeared to rely on, among other things, hearsay
statements and the conclusion of a court-appointed forensic
evaluator whose opinions and credibility were untested by either
party.   A decision regarding child custody should be based on
admissible evidence, and there is no indication that a "best
interest" determination was ever made based on anything more
reliable than mere "information."   Moreover, while Supreme Court
purported to rely on allegations that were "not controverted,"
the affidavit filed by Mother plainly called into question or
sought to explain the circumstances surrounding many of the


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alleged "incidents of disturbing behavior."       These circumstances
do not fit within the narrow exception to the general right to a
hearing.
            We take no position on whether the award of custody to
Father was an appropriate result; we hold only that, on this
record, the Appellate Division erred in holding that a hearing
was not required based on an application of the "adequate
relevant information" standard.    In doing so, we reaffirm the
long-established principle that, as a general matter, custody
determinations should be rendered only after a full and plenary
hearing.    We decline, however, to fashion a "one size fits all"
rule mandating a hearing in every custody case statewide.
However, where, as here, facts material to the best interest
analysis, and the circumstances surrounding such facts, remain in
dispute, a custody hearing is required.       Accordingly, a court
opting to forego a plenary hearing must take care to clearly
articulate which factors were -- or were not -- material to its
determination, and the evidence supporting its decision.         Under
the circumstances of this case, a plenary hearing was necessary.
            The order of the Appellate Division should be reversed,
with costs, and the case remitted to Supreme Court for further
proceedings in accordance with this opinion.
*   *   *    *   *   *   *   *    *      *   *   *   *   *   *    *      *
Order reversed, with costs, and   case remitted to Supreme Court,
Westchester County, for further   proceedings in accordance with
the opinion herein. Opinion by    Judge Garcia. Judges Pigott,
Rivera, Abdus-Salaam, Stein and   Fahey concur. Chief Judge

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DiFiore took no part.

Decided June 9, 2016




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