                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: April 2, 2015                     518480
_________________________________

In the Matter of NICOLE
   RICHARDSON,
                    Appellant,
      v
                                            MEMORANDUM AND ORDER
HASAN ROI MASSEY SR.,
                    Respondent.

(And Another Related Proceeding.)
_________________________________


Calendar Date:   February 20, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                             __________


     Ivy M. Schildkraut, Monticello, for appellant.

     Cliff Gordon, Monticello, for respondent.

     Marcia Heller, Rock Hill, attorney for the child.

                             __________


Devine, J.

      Appeal from an order of the Family Court of Sullivan County
(McGuire, J.), entered January 31, 2014, which, among other
things, granted respondent's application, in two proceedings
pursuant to Family Ct Act article 6, to modify a prior order of
custody.

      Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of a son (born in 2009).
A November 2011 custody order awarded the parties joint legal
custody of the child, with the mother having parenting time from
Saturday to Wednesday and the father having parenting time for
                              -2-                518480

the remainder of the week. In 2013, the mother petitioned, and
the father cross-petitioned, for modification of the 2011 order.
The mother failed to appear at the commencement of the fact-
finding hearing, prompting Family Court to dismiss her petition.
Family Court continued the hearing with regard to the father's
cross petition, with counsel for the mother participating and the
mother arriving shortly thereafter. In the midst of cross-
examination of the father, and before the mother could place any
of her proof on the record, the parties agreed to a modified
order wherein the parties would have joint legal custody of the
child and equal parenting time on alternating weeks. After the
mother indicated that her work schedule would make it difficult
for her to place the child on the school bus every morning,
however, Family Court granted sole legal and physical custody to
the father and restricted the mother's parenting time to
alternating weekends. Family Court then issued a written order
embodying its decision.

      The mother appeals and contends, among other things, that
she was deprived of her right to procedural due process.
Initially, while the mother did not object to the altered
custodial arrangement at the conclusion of the hearing, her
"argument is properly before us, as Family Court's abrupt
termination of the proceedings afforded [her] no opportunity to
enter any objection" (Matter of Middlemiss v Pratt, 86 AD3d 658,
659 n [2011]; see CPLR 5501 [a] [3]; Family Ct Act § 1118;
compare Matter of Gary MM. [Girard MM.], 100 AD3d 1206, 1207
[2012]). We accordingly turn to the merits of that argument and
reverse.

      It is well settled "that modification of a Family Ct Act
article 6 custody order requires a full and comprehensive hearing
at which a parent is to be afforded a full and fair opportunity
to be heard" (Matter of Damian D. [Travis D.], 126 AD3d 12,     ,
1 NYS3d 456, 459 [2015] [internal quotation marks and citations
omitted]; see Matter of Whiteford v Jones, 104 AD3d 995, 996
[2013], lv dismissed 21 NY3d 974 [2013]; Matter of Middlemiss v
Pratt, 86 AD3d at 659). Family Court plainly deprived the mother
of such a hearing by preventing her from fully cross-examining
the father or submitting her own proof before imposing a custody
arrangement to which she had not consented (see Matter of Jeffrey
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JJ. v Stephanie KK., 88 AD3d 1083, 1084 [2011]; Matter of
Middlemiss v Pratt, 86 AD3d at 659). We thus remit for a new
hearing, although we are unpersuaded that Family Court engaged in
the type of "unorthodox and casual" conduct that would warrant
the assignment of a new judge (Matter of Cornell v Cornell, 8
AD3d 718, 720 [2004]; see Matter of Jeffrey JJ. v Stephanie KK.,
88 AD3d at 1084). Under the circumstances, the November 2011
order will remain in effect pending further proceedings (see
Matter of McCullough v Harris, 119 AD3d 992, 993 [2014]).

      In light of the foregoing, we need not address the mother's
remaining contentions.

     Lahtinen, J.P., Garry and Rose, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, and matter remitted to the Family Court of Sullivan County
for further proceedings not inconsistent with this Court's
decision and, pending said proceedings, the November 16, 2011
order shall remain in effect as a temporary order.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
