                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: July 9, 2015                      519997
________________________________

In the Matter of CURTIS R.
   VARNER,
                    Respondent,
      v                                     MEMORANDUM AND ORDER

AMANDA N. GLASS,
                    Appellant.
________________________________


Calendar Date:   April 30, 2015

Before:   Lahtinen, J.P., Garry, Egan Jr. and Rose, JJ.

                             __________


     Michelle I. Rosien, Philmont, for appellant.

     John Ferrara, Monticello, attorney for the children.

                             __________


Garry, J.

      Appeal from an order of the Family Court of Sullivan County
(McGuire, J.), entered August 21, 2014, which granted
petitioner's application, in a proceeding pursuant to Family Ct
Act article 6, for custody of the parties' children.

      Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of two children (born in
2012 and 2013). Shortly after the parties married in 2011, they
began residing with the children's paternal grandmother in
Sullivan County. In late 2013, the parties agreed to move to
California, planning that the mother would first relocate with
the children and the father would follow a few months later,
after making arrangements for transportation or disposal of their
belongings. The mother and children relocated to California in
January 2014, residing there with the mother's aunt. In early
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March 2014, the father advised that he intended to rejoin the
family in the immediate future; the mother objected and told him
to delay his plans. During this period, the conflict between the
parties ultimately culminated in a complete breakdown of their
relationship and cessation of communication.

      The father filed a custody petition in Family Court and the
mother then petitioned for custody in California. Family Court
conferred with the California court, and it was determined that
New York, as the children's home state, would retain jurisdiction
of the custody matter (see Domestic Relations Law § 76-e [2]).
Shortly thereafter, a custody hearing commenced. The mother was
the sole witness to testify and, following her testimony on
direct examination, the court granted the father's motion –
joined by the attorney for the children – for a directed verdict,
granted the father full custody, and made no provision for the
mother to have contact with the children. The mother appeals.

      We reverse. As the mother and the attorney for the
children on appeal argue, Family Court's decision lacks a sound
and substantial basis. The court erred in rendering this initial
custody determination upon a motion for a directed verdict based
upon sorely limited evidence and testimony. An initial custody
determination must be based upon the best interests of the
children overall, considering all relevant factors, including
"the parents' past performance and relative fitness, their
willingness to foster a positive relationship between the child
and the other parent, as well as their ability to maintain a
stable home environment and provide for the child's overall
well-being" (Matter of Bush v Lopez, 125 AD3d 1150, 1150-1151
[2015] [internal quotation marks and citations omitted]; see
generally Eschbach v Eschbach, 56 NY2d 167 [1982]). The record
evidence here was patently insufficient to permit such an
analysis; instead, it fully illustrates why it is generally held
to be error as a matter of law to render a custody award in a
controverted proceeding without the benefit of a full hearing
(see Matter of Nalty v Kong, 59 AD3d 723, 724 [2009]; Matter of
Williams v Williams, 35 AD3d 1098, 1099-1100 [2006]).

      All parties involved in the underlying proceeding erred in
viewing the issues solely as a matter of application of the
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factors established in Matter of Tropea v Tropea (87 NY2d 727
[1996]). As there had been no prior award of custody, strict
application of those factors was not required (see Ostrander v
McCain, 68 AD3d 1480, 1481 [2009]; Malcolm v Jurow-Malcolm, 63
AD3d 1254, 1255 [2009]; Furman v Furman, 298 AD2d 627, 628-629
[2002], lv denied and dismissed 99 NY2d 575 [2003]). Rather, the
effect of relocation was among the relevant factors to be
considered in determining the children's best interests (see
Matter of Saperston v Holdaway, 93 AD3d 1271, 1272 [2012], lvs
dismissed 19 NY3d 887 [2012], 20 NY3d 1052 [2013]; Matter of
Baker v Spurgeon, 85 AD3d 1494, 1496 [2011], lv dismissed 17 NY3d
897 [2011]). As the court "'did not possess sufficient
information to render an informed determination that was
consistent with the child[ren's] best interests,'" we reverse and
remit for a full hearing (Matter of Williams v Williams, 35 AD3d
at 1100, quoting Matter of Elliott v Major, 1 AD3d 940, 941
[2003]; see Obey v Degling, 37 NY2d 768, 771 [1975]; see also
Matter of Cornell v Cornell, 8 AD3d 718, 720 [2004]).

      Family Court further erred in failing to make any provision
for the mother to have contact or communication with the
children. As the attorney for the children asserts, no basis was
demonstrated for fearing that any harm might befall the children
in their mother's care. As a direct result of the court's
failure to address the mother's right to access to her children
in any manner whatsoever, these young children have now been
wholly deprived of their mother's care and company for a lengthy
period of their young lives. It is therefore imperative that a
temporary order be made forthwith providing for communication and
parenting time with the children for the mother, and establishing
guidelines and provisions for shared parenting during the
pendency of further proceedings. Unfortunately, the record
before us is so sparse that we lack essential information to
address this issue appropriately.

      Finally, as we find that the manner in which this hearing
was conducted reveals that Family Court treated the mother with
apparent disdain, such that we cannot be assured that further
proceedings will be conducted in an impartial manner, we further
direct that future proceedings between these parties be presided
over by a different judge (see Matter of Valenti v Valenti, 57
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AD3d 1131, 1136 [2008], lv denied 12 NY3d 703 [2009]).

     Lahtinen, J.P., Egan Jr. and Rose, JJ., concur.



      ORDERED that the order is reversed, on the law, without
costs, matter remitted to the Family Court of Sullivan County for
further proceedings not inconsistent with this Court's decision
before a different judge, and, within 30 days of the date of this
order, Family Court is directed to issue a temporary order making
provisions for shared parenting time for respondent, and, pending
said further proceedings, temporary physical custody of the
children shall continue with petitioner.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
