Anthony R. v. Erie County Children's Services , 850 N.Y.S.2d 779 ( 2008 )

Appeal from an order of the Family Court, Erie County (Patricia A. Maxwell, J.), entered January 18, 2007 in a proceeding pursuant to Family Court Act article 6. The order dismissed the petition.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Erie County, for a hearing on the petition.

Memorandum: Petitioner father contends on appeal that Family Court erred in dismissing his petition seeking custody of his child without conducting a hearing. We agree. The court summarily dismissed the petition based on the father’s prior consent to be recognized as a “noticed” father with respect to the child’s prospective adoption. That was error, inasmuch as there was an order of filiation in effect and, indeed, the record establishes that respondent withdrew its petition to terminate the father’s parental rights. Thus, the father has standing to seek custody of his child despite his status as a “noticed” father with respect to the prospective adoption (see generally Matter of LaCroix v Deyo, 113 Misc 2d 89, 91-92 [1981], affd 88 AD2d 1077 [1982], appeal dismissed 57 NY2d 759 [1982]), and the court should have conducted a hearing to determine the best interests of the child (see generally Obey v Degling, 37 NY2d 768, 769-770 [1975]). Present—Hurlbutt, J.P., Martoche, Fahey, Peradotto and Green, JJ.