Sugnet v. Stiles , 738 N.Y.S.2d 623 ( 2002 )

—Appeal from an order of Family Court, Cattaraugus County (Kelly, J.H.O.), entered August 2, 2000, which awarded the parties joint custody of their son, with primary physical custody to respondent.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law without costs and the matter is remitted to Family Court, Cattaraugus County, for further proceedings in accordance with the following memorandum: Although Family Court erred in entering a temporary order modifying the existing custody arrangement of the parties with respect to their son without first conducting an evidentiary hearing (see, Matter of Smith v Brown, 272 AD2d 993, 994; Matter of Smith v Patrowski, 226 AD2d 1073, 1073-1074; Matter of Farrelly-Brew v Moore, 221 AD2d 1000), reversal on that ground is not required because an evidentiary hearing subsequently was conducted (see, Matter of Smith v Patrowski, supra at 1074). At that hearing, conducted before a Judicial Hearing Officer upon the consent of the parties, the parties stipulated to joint custody of their son, with primary placement with respondent and visitation with petitioner.

We agree with petitioner, however, that the court erred in settling the order purporting to reflect the parties’ stipulation after a proceeding at which petitioner’s attorney was not present (see, Family Ct Act § 262 [a] [v]; Matter of Mahoney v Doring, 256 AD2d 1112, 1113; see generally, Matter of Sasha S., 256 AD2d 468, 469). We therefore reverse the order and remit the matter to Family Court, Cattaraugus County, for further proceedings to settle the order. Present — Wisner, J.P., Hurlbutt, Kehoe, Burns and Lawton, JJ.