- Court
- New York Supreme Court, Appellate Division, Second Department
- Case
- Matter of Thomas G. v. Marta B.
- Date
- June 3, 2026
- Slip Op. No.
- 2026 NY Slip Op 03446
Background
The parties have one child, born in 2015. In 2019, both parents filed custody petitions, and in September 2023, each filed family offense petitions seeking orders of protection. The father filed an additional family offense petition in October 2023. The Family Court commenced a joint hearing on all petitions. The mother failed to appear for her cross-examination, leading the court to dismiss her custody and family offense petitions on default.
At the next hearing date, the mother again failed to appear. Her attorney requested an adjournment but “otherwise remained mute,” offering no explanation for the mother’s absence. The court denied the adjournment request and proceeded with the hearing on the father’s petitions. The court granted the father sole legal and physical custody and found the mother committed harassment in the second degree. The mother appealed from the order entered on her default.
Holding
The Appellate Division, Second Department, dismissed the appeal insofar as it sought review of the order entered upon the mother’s default, with the exception that review was available on the denial of the adjournment request, which had been the subject of contest below. On that issue, the Court affirmed, finding that the Family Court providently exercised its discretion in denying the adjournment.
The mother had a documented history of missing court dates, and her attorney failed to offer a credible explanation for her absence. The Court applied the principle that appellate review of an order entered on default is limited to matters that were actually contested in the lower court, which here was limited solely to the adjournment denial.
Takeaways
This case highlights two important procedural principles: (1) no appeal lies from an order entered upon a party’s default, limiting review to matters that were actually contested below; and (2) courts have broad discretion to deny adjournment requests, particularly where the absent party has a history of non-appearance and counsel provides no credible explanation. Parents in Family Court proceedings risk losing custody and facing adverse findings if they repeatedly fail to appear, as the court will eventually proceed without them.
Why It Matters
Family Court practitioners must impress upon clients the critical importance of appearing at every scheduled court date. A pattern of non-appearance can result in default orders that are virtually unreviewable on appeal. The narrow scope of appellate review—limited here to the adjournment denial—means that the substantive custody and family offense determinations are effectively final despite being made in the mother’s absence. Attorneys who must seek adjournments on behalf of absent clients should be prepared to provide specific, credible reasons for the absence, not merely request delays without explanation.