On July 22, 2025, Dallas X. (hereinafter "the father") filed a modification petition seeking increased contact with the parties' child (date of birth: XX/XX/19) (hereinafter "the child"). On October 20, 2025, Belinda Y. (hereinafter "the mother") filed an answer and counter-petition for modification seeking suspension of the father's contact and communication with the child. The prior Article 6 order, entered March 4, 2021, granted the mother sole legal custody and placement of the child with the father to have one hour of supervised visitation with the child per week, plus additional supervised parenting time as mutually agreed. The order provides that the father may re-petition for modification upon "proof of compliance with [*2]probation and any recommended services for a consistent period of six months without otherwise alleging a change in circumstances."

The fact-finding hearing was scheduled for February 2, 2026. The father appeared with counsel, Attorney Robert Baska, Esq. Counsel for the mother, Attorney Todd Livingston, Esq., appeared. The Attorney for the Child, Elizabeth McGrath, Esq., Citizens Concerned for Children, Inc., appeared. The mother did not appear. The Court dismissed the mother's petition without prejudice for failure to prosecute and held an inquest on the father's petition. Attorney Livingston remained for the hearing but did not participate. The father called his wife as his only witness. She testified on direct examination and was cross-examined by Attorney McGrath. The father then rested his case. Attorney McGrath then called the father as her only witness. He was questioned by both Attorney McGrath and Attorney Baska.

At the hearing, the Court took judicial notice of a final order of protection issued in the Integrated Domestic Violence Part of the Supreme Court by Judge John C. Rowley against the father in favor of the mother and child on November 12, 2021 — just eight months after entry of the prior Article 6 order set forth above. The order of protection prohibits the father from engaging in all contact and communication with the mother and child except for any contact, communication, and access permitted by subsequent order issued by a family or supreme court in a custody, visitation, or child abuse or neglect proceeding. The order of protection was issued upon the father's conviction for Attempted Burglary in the Second Degree. The order is in effect until November 11, 2031. At the hearing, the Court also took judicial notice of the fact that the father was in prison prior to the filing of the within petitions. At the conclusion of the fact-finding, a Lincoln hearing was scheduled.

On February 6, 2026, Attorney Livingston filed a motion to vacate the default. Per the AFC's request, the Court adjourned the Lincoln hearing pending determination of this motion. On February 8, 2026, Attorney Baska filed an affirmation in opposition to the mother's motion to vacate. On February 10, 2026, AFC McGrath filed an affirmation in support of the mother's motion to vacate. On February 17, 2026, Attorney Baska filed a second affirmation in opposition. The Court has reviewed all filings.

"In order to vacate a default judgment, the moving party is 'required to demonstrate both that there was a reasonable excuse for his or her failure to appear and that [he or she] had a meritorious defense against the allegations addressed at the hearing' [internal citations omitted]." Matter of Shannon NN. V. Tarrin OO.. 194 AD3d 1138 (3rd Dept. 2021). "Further, whether to vacate a default judgment is a determination that lies within the sound discretion of the trial court, 'subject to reversal only where there has been a clear abuse of that discretion' [internal citations omitted]." 135 Bowery, LLC v. 10717, LLC, 145 AD3d 1225, 1227 (3rd Dept. 2016). In custody proceedings pursuant to Article 6 of the Family Court Act, courts have adopted a liberal policy in favor of vacating defaults. See Matter of Lemon v. Faison, 150 AD3d 1003, 1005 (2nd Dept. 2017). The Third Department has held that, "'[a]lthough it is true that a motion to vacate a default judgment is addressed to the sound discretion of the trial court, it is also true that disposition on the merits is favored' [internal citations omitted]." Matter of Brown v. Eley, 107 AD3d 1334, 1335 (3rd Dept. 2013). Further, "the lack of a full hearing to determine the best interests of the [child], a determination in which Family Court 'is bound to assess numerous factors,' constitutes a meritorious defense [internal citations omitted]." Id. at 1336.

In Menditto v. Collier, the Third Department held that the family court abused its [*3]discretion when it denied a father's motion to vacate a default judgment in a custody case. Menditto v. Collier, 101 AD3d 1409, 1410 (3rd Dept. 2012). In that case, the father appeared at the court hours after his scheduled appearance and wrote a letter to the court citing car trouble as the reason for his failure to appear. The Third Department found this to be a "reasonable excuse." Id. The Court noted that "no prejudice accrued to the mother, as she was on notice that he intended to oppose the violation petition." Id. The Third Department held that, "[m]oreover, and of paramount importance in this custody case, Family Court failed to make any findings relative to the best interests of the child, which it was required to do prior to changing an established custody arrangement [internal citations omitted]." Id.

Here, as in Menditto, the Court finds that the mother has established both a reasonable excuse for her failure to appear and a meritorious defense or claim, and that the Court must hear from both parties before making any findings relative to the best interests of the child as it is required to do. The mother cites that there was a misunderstanding with the person who was to provide her transportation to the courthouse on the date of the scheduled hearing. The Court is sensitive to the transportation issues facing its litigants, many of whom cannot afford to own or lease their own vehicle. The Court further notes that the mother has routinely appeared in court before this judge, both on the within petitions and in prior litigation between these same parties, dating back to June of 2020. The mother's motion to vacate the default judgment was timely as it was filed just several days after the missed hearing. The Court finds the mother's excuse to be both credible and reasonable.

Here, as in Menditto, the father is not prejudiced as he was on notice that the mother opposed his petition. Further, this Court's dismissal of the mother's petition was without prejudice, meaning that the mother — without leave of the Court — could file a petition today that is identical to the answer and counter-petition she filed on October 20, 2025. The Court has not yet issued a decision on the father's petition or held a Lincoln hearing with the child. The father is not prejudiced by the vacatur of the default judgment against the mother and the reopening of proof. Furthermore, the best interests of the child require it.

The mother, the sole custodian of the child, has set forth a meritorious defense or claim in both her counter-petition and motion papers. In short, she asserts that the only contact the father has had with the child in recent years while the father was in prison was a few video calls ^[FN1] . The mother alleges that the video calls went poorly and she was forced to cut them short because the father, rather than engage with the child, addressed the mother with inappropriate talk of gang affiliations and violence. The mother asserts that the father has stated he is a member of the Crips gang. The mother alleges that the father has engaged in a pattern of third-party harassment against the mother in violation of the final order of protection issued by Judge Rowley. The mother alleges that another child that the father has with a different woman is in DSS custody, and that DSS will only allow supervised visitation for the father and that child. The Court finds that the mother has asserted a meritorious defense or claim that the father's parenting time with the child should be suspended.

Even putting aside these concerning allegations, the lack of a full hearing to determine the best interests of the child alone would be enough to establish this prong of the legal standard. [*4]Matter of Brown v. Eley, 107 AD3d 1334, 1335 (3rd Dept. 2013). The Court currently lacks information sufficient to determine whether a modified Article 6 order would be in the child's best interests and, if so, what that modified order should entail. As AFC McGrath aptly noted in her papers, "[n]o evidence was introduced about where the child lives, his developmental needs, educational placement, health concerns, or regular schedule." Affirmation of Attorney for Child, ¶ 10. The Court simply must hear from the sole custodial parent — the mother — before determining what kind of order will be in the child's best interests. As such it is hereby

ORDERED, that the mother's motion to vacate the default judgment against her is GRANTED, and her answer and counter-petition (Docket No.: V-688-20/25D) are hereby RESTORED; and it is further

ORDERED, that the proof is reopened on both parties' petitions; and it is further

ORDERED, that chambers will reach out to counsel to schedule a date for the continuation of the fact-finding hearing.