Opinion
297 CAF 18–00745
03-22-2019
In the Matter of Jessica W. BENSON, Petitioner–Respondent, v. James T. SMITH, Respondent–Appellant. (Appeal No. 1.)
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT. RAYMOND P. KOT, II, WILLIAMSVILLE, FOR PETITIONER–RESPONDENT. MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILD.
DAVISON LAW OFFICE PLLC, CANANDAIGUA (MARK C. DAVISON OF COUNSEL), FOR RESPONDENT–APPELLANT.
RAYMOND P. KOT, II, WILLIAMSVILLE, FOR PETITIONER–RESPONDENT.
MARYBETH D. BARNET, MIDDLESEX, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., CARNI, LINDLEY, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the case is held, the decision is reserved and the matter is remitted to Family Court, Steuben County, for further proceedings in accordance with the following memorandum: In appeal No. 1, respondent father appeals from an order of protection issued upon a finding that he committed a family offense against petitioner mother. In appeal No. 2, the father appeals from an order that, inter alia, granted the mother's petition for sole custody of the parties' daughter and denied the father any visitation.
In each appeal, we agree with the father that Family Court failed to adequately set forth its essential findings of fact (see CPLR 4213[b] ; Family Ct Act § 165[a] ; Matter of Graci v. Graci , 187 A.D.2d 970, 971, 590 N.Y.S.2d 377 [4th Dept. 1992] ). In appeal No. 1, the court failed to specify the family offense upon which the order of protection was predicated (see Matter of Langdon v. Langdon , 137 A.D.3d 1580, 1582, 27 N.Y.S.3d 750 [4th Dept. 2016] ). In appeal No. 2, the court failed to "set forth its analysis of those factors that traditionally affect the best interests of a child, namely, the relative fitness of each party, each parent's ability to provide for the emotional and intellectual development of the child, the ability to provide financially for the child, the quality of the home environment, the length of time and stability of prior custodial arrangements, [and] the need of a child to reside with siblings[, if any] ... As a result, we are unable to review [the court's] ultimate factual finding regarding each of those factors and the weight it placed upon each factor relative to the best interests of the child[ ]" ( Graci , 187 A.D.2d at 971–972, 590 N.Y.S.2d 377 ). Under the circumstances of these cases, we decline to exercise our discretion to make the requisite findings (see Matter of Rocco v. Rocco , 78 A.D.3d 1670, 1671, 910 N.Y.S.2d 826 [4th Dept. 2010] ). We therefore hold the case in each appeal, reserve decision, and remit the matters to Family Court to make the requisite factual findings (see Matter of Valentin v. Mendez , 165 A.D.3d 1643, 1643–1644, 82 N.Y.S.3d 918 [4th Dept. 2018] ).
Finally, in the interest of judicial economy, we address the father's challenge to the court's refusal to adjourn the hearing and conclude that it lacks merit (see Matter of Sanchez v. Alvarez , 151 A.D.3d 1869, 1869, 58 N.Y.S.3d 786 [4th Dept. 2017] ). We further conclude that the father failed to preserve his contention that the court violated his due process rights by allowing him to be handcuffed at trial (see People v. Leitzsey , 142 A.D.3d 918, 918–919, 37 N.Y.S.3d 883 [1st Dept. 2016], lv denied 28 N.Y.3d 1147, 52 N.Y.S.3d 299, 74 N.E.3d 684 [2017] ).