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The pandemic has slowed the processing of cases, particularly those that require judicial intervention and especially those that require a hearing. Custody determinations require both. These procedural obstacles are amplified in Supreme Court where custody issues are only decided by a judge; custom dictates that they cannot be delegated to a referee, special master, or arbitrator. In Family Court, on the other hand, custody issues can be heard by a judge or by a referee on consent or, in certain instances, on motion. See CPLR §4317.

In Obey v. Degling, the Court of Appeals held that custody determinations must be made following a full plenary hearing. See 37 N.Y.2d 768, 770 (N.Y. 1975). For nearly five decades the law has remained unchanged, providing only narrow exceptions when material facts underlying the custody petition are not in dispute and when the court possesses sufficient information with which to make an informed and provident decision in the best interest of the child. When these exceptions are presented to appellate courts, one finds inexplicable variations.