Sales v. Gisendaner

—Order unanimously reversed on the law without costs and matter remitted to Erie County Family Court for further proceedings in accordance with the following Memorandum: In this child custody dispute between a mother and grandmother, Family Court erred in granting the grandmother’s petition without a hearing on the ground that the mother had defaulted in appearing in response thereto. A party who is represented at a scheduled court appearance by an attorney has not failed to appear (see, Matter of Cleveland W., 256 AD2d 1151 , 1151-1152; Matter of Robert F, 200 AD2d 899 ; Matter of Cecelia A., 199 AD2d 582 ; cf., Matter of Black v Black, 84 AD2d 922 ). In any event, the court erred in granting the petition summarily (see, Obey v Degling, 37 NY2d 768 , 769-770; Matter of Van Etten v Van Etten, 207 AD2d 992 ). A parent’s right to be heard on a matter of child custody is fundamental and “not to be disregarded absent a convincing showing of waiver” (Matter of Kendra M., 175 AD2d 657 , 658; see, Matter of Cleveland W., supra, at 1151 ). Moreover, transfer of custody from a parent to a nonparent requires a showing of extraordinary circumstances justifying the court’s intervention, followed by a showing that an award of custody to the nonparent is in the child’s best interests (see, Matter of Bennett v Jeffi'eys, 40 NY2d 543 , 545-