The court-appointed Attorney for the Children may object to and appeal from a custody order entered upon the consent of the parents. So held the Appellate Division, Second Departrment, in its June 26, 2015 decision in Velez v. Alverez, reversing the order of Westchester County Family Court Judge Robert C. Cerrato.
The mother and the father filed custody cross-petitions in Family Court. Over the objection of the Attorney for the Children, the order appealed from was entered upon the consent of the parents, embodying the terms of the parents’ settlement agreement.
On appeal, the attorney for the children contended that the Judge Cerrato approved the agreement without having sufficient information to enable it to render an informed determination as to whether the terms of the agreement were in the best interests of the subject children.
Contrary to the father’s contention, the attorney for the children was empowered to appeal from that order.
As a general rule, it is error as a matter of law to make an order respecting custody based upon controverted allegations without the benefit of a full hearing. Since the court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed.
The Second Department did note, however, that a hearing may not be necessary where the court possesses adequate relevant information to enable it to make an informed and provident determination as to the children’s best interest.
However, here, the Second Department held that the Family Court did not possess sufficient information to enable it to render an informed and provident determination as to the best interests of the children.
Accordingly, the matter was remitted to the Family Court for an evidentiary hearing on the issues of physical custody and visitation, including in camera interviews of the children and a new determination thereafter of the petitions. The appellate court also ordered that forensic evaluations of the parents and children precede that hearing. In the interim, and until further order of the Family Court, the provisions of the consent order will remain in effect.
Dawn M. Shammas, Esq., of Harrison, served as attorney for the children. Maria J. Frank, Esq., of Yorktown Heights, represented the mother. Evelyn K. Isaac, Esq., of Hastings-on-Hudson, represented the father.