Peck-Barnett v Barnett, 2011 NY Slip Op 01927 [82 AD3d 540]

March 17, 2011

Appellate Division, First Department

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Teitler & Teitler, LLP, New York (Nicholas W. Lobenthal of counsel), for appellant. Frederic P. Schneider, New York, Attorney for the Child.

Order, Supreme Court, New York County (Saralee Evans, J.), entered July 9, 2010, which designated defendant father the temporary custodial parent with the authority to decide where the subject child would attend camp in the summer of 2010 and school in the 2010-2011 school year, unanimously reversed, on the law and the facts and in the exercise of discretion, without costs, and the order vacated.

The court erred in ordering a radical change in custody via an interim order, without the benefit of a full evidentiary record ( see Scotto v Scotto , 66 AD2d 839 [1978]). The propriety of the order has been undermined by the child’s improvement during the time the order was stayed by this Court pending this appeal. Proper resolution of the custody issue requires a prompt trial, at which a full evidentiary record is developed, so that the court is armed with the facts sufficient determine the best interests of the child. Concur—Gonzalez, P.J., Friedman, Catterson, Renwick and Abdus-Salaam, JJ.