Opinion
No. 1651.
December 3, 2009.
Order, Family Court, Bronx County (Carol Ann Stokinger, J.), entered on or about March 18, 2008, which denied respondent's objection to the Support Magistrate's child support order of December 17, 2007, unanimously reversed, on the law, without costs, the objection sustained, and the matter remanded for a new hearing on the petition.
Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for appellant.
Robert M. Morgenthau, District Attorney, New York (Timothy C. Stone of counsel), for respondent.
Before: Saxe, J.P., Friedman, Acosta, Renwick and Abdus-Salaam, JJ.
Respondent, who was incarcerated at the time of the December 17, 2007 hearing, was entitled to an opportunity to be heard (Family Ct Act § 433 [a]). Although he wrote the court advising of his incarceration and his desire to participate in the hearing, no effort was made to produce him for the hearing or to permit him to testify by telephone or other electronic means as permitted in such circumstances (Family Ct Act § 433 [c] [ii]). "[E]ven an incarcerated parent has a right to be heard on matters concerning [his] child, where there is neither a willful refusal to appear nor a waiver of appearance" ( Matter of Tristram K., 25 AD3d 222, 226; see Matter of Jung [State Commn. on Jud. Conduct], 11 NY3d 365, 373). Accordingly, we reverse and remand for a new hearing ( see Matter of Seckler-Roode v Roode, 53 AD3d 616).