Opinion
2015-05-08
In the Matter of Allyson A. MILLS, Petitioner–Appellant, v. Joel T. RIEMAN, Respondent–Respondent. In the Matter of Joel T. Rieman, Petitioner–Respondent, v. Allyson A. Mills, Respondent–Appellant.
Bouvier Partnership, LLP, Buffalo (Emilio Colaiacovo of Counsel), for Petitioner–Appellant And Respondent–Appellant. Gleichenhaus, Marchese & Weishaar, P.C., Buffalo (Charles J. Marchese of Counsel), for Respondent–Respondent and Petitioner–Respondent.
Bouvier Partnership, LLP, Buffalo (Emilio Colaiacovo of Counsel), for Petitioner–Appellant And Respondent–Appellant. Gleichenhaus, Marchese & Weishaar, P.C., Buffalo (Charles J. Marchese of Counsel), for Respondent–Respondent and Petitioner–Respondent.
Mindy L. Marranca, Attorney for the Child, Buffalo.
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DeJOSEPH, JJ.
MEMORANDUM:
In this custody proceeding pursuant to Family Court Act article 6, petitioner-respondent mother appeals from an order that modified a prior order by granting sole legal custody of the parties' daughter to respondent-petitioner father. We agree with the mother that “Family Court's determination with respect to custody lacks a sound and substantial basis in the record” ( Matter of Thurston v. Skellington, 89 A.D.3d 1520, 1520, 933 N.Y.S.2d 154; see Matter of Bryan K.B. v. Destiny S.B., 43 A.D.3d 1448, 1449, 844 N.Y.S.2d 535).
“[A] custody determination should be made only after a full and fair hearing at which the record is fully developed” ( Matter of Peek v. Peek, 79 A.D.3d 753, 754, 913 N.Y.S.2d 281; see Barnes v. Barnes, 234 A.D.2d 959, 959, 651 N.Y.S.2d 776). Here, the court made its determination following a hearing at which, apart from an in camera interview of the child, the mother was the sole witness. Although the record contains sufficient evidence to establish that “[t]he relationship of the parties had deteriorated to such an extent that [the existing joint custody arrangement] was no longer feasible” ( Matter of Thayer v. Ennis, 292 A.D.2d 824, 825, 739 N.Y.S.2d 321; see Matter of York v. Zullich, 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637), it “does not contain sufficient evidence supporting the award of sole legal custody to [the father]” ( Matter of David A.A. v. Maryann A., 41 A.D.3d 1300, 1300, 837 N.Y.S.2d 479; see Matter of Williams v. Williams, 35 A.D.3d 1098, 1099–1100, 827 N.Y.S.2d 328; cf. Matter of Tin Tin v. Thar Kyi, 92 A.D.3d 1293, 1293, 938 N.Y.S.2d 407, lv. denied 19 N.Y.3d 802, 2012 WL 1538438). Indeed, inasmuch as the mother's testimony raised significant questions about the father's parental fitness and the father did not present any evidence, “we conclude that the [father] failed to establish that it was in the best interests of the child to award sole custody to [him]” ( Matter of Gelster v. Burns, 122 A.D.3d 1294, 1295, 996 N.Y.S.2d 438, lv. denied 24 N.Y.3d 915, 2015 WL 733613).
Moreover, the court failed to make any findings concerning the factors that must be considered in making a best interests determination ( see Matter of Avdic v. Avdic, 125 A.D.3d 1534, 1536, 4 N.Y.S.3d 792), and we conclude that “the record is insufficient for us to make an independent determination in this regard” ( Matter of Martin v. Mills, 94 A.D.3d 1364, 1366, 943 N.Y.S.2d 631; see Matter of Bradbury v. Monaghan, 77 A.D.3d 1424, 1425, 908 N.Y.S.2d 476; Matter of Amato v. Amato, 51 A.D.3d 1123, 1124, 857 N.Y.S.2d 778). We therefore reverse the order and remit the matter to Family Court for a new hearing focusing on the best interests of the child ( see Bradbury, 77 A.D.3d at 1424, 908 N.Y.S.2d 476).
Contrary to the mother's further contention, we conclude that the court properly denied her motion to remove the Attorney for the Child (AFC) ( see Matter of Linda S. v. Westchester County Dept. of Social Servs., 63 A.D.3d 1164, 1164–1165, 881 N.Y.S.2d 308, lv. dismissed in part and denied in part 13 N.Y.3d 825, 890 N.Y.S.2d 438, 918 N.E.2d 951; see also Matter of Leichter–Kessler v. Kessler, 71 A.D.3d 1148, 1149, 897 N.Y.S.2d 639). The record establishes that “the AFC properly advocated for the wishes of [her] client” ( Matter of Swinson v. Dobson, 101 A.D.3d 1686, 1687–1688, 956 N.Y.S.2d 765, lv. denied 20 N.Y.3d 862, 2012 WL 7801756).
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, and the matter is remitted to Family Court, Erie County, for further proceedings.