Opinion
2014-09-17
In the Matter of Gabriel RIVERA, respondent, v. Veronica AROCHO, appellant.
Kenneth M. Tuccillo, Hastings on the Hudson, N.Y., for appellant. Larry S. Bachner, Jamaica, N.Y., attorney for the child.
Kenneth M. Tuccillo, Hastings on the Hudson, N.Y., for appellant. Larry S. Bachner, Jamaica, N.Y., attorney for the child.
PETER B. SKELOS, J.P., THOMAS A. DICKERSON, LEONARD B. AUSTIN, and COLLEEN D. DUFFY, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Seiden, Ct.Atty.Ref.), dated August 15, 2012, which, after a hearing, awarded the father sole custody of the parties' child and failed to award her visitation.
ORDERED that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, for further proceedings consistent herewith.
A referee derives authority from an order of reference by the court ( seeCPLR 4311), which can be made only upon consent of the parties, except in limited circumstances not applicable here ( seeCPLR 4317; Matter of McClarin v. Valera, 108 A.D.3d 719, 968 N.Y.S.2d 899; Matter of Stewart v. Mosley, 85 A.D.3d 931, 932, 925 N.Y.S.2d 594). Here, the administrative order of reference recited that, upon the parties' consent, it authorized a court attorney referee to hear and determine the parties' rights to custody of and visitation with the parties' child ( seeCPLR 4317[a] ). Upon our review of the record, however, we find that the mother did not stipulate to the reference in the manner prescribed by CPLR 2104. Absent the parties' consent to the reference, the Court Attorney Referee had the power only to hear and report her findings ( seeCPLR 4317[a]; see also Matter of McClarin v. Valera, 108 A.D.3d at 720, 968 N.Y.S.2d 899; Matter of Stewart v. Mosley, 85 A.D.3d at 932, 925 N.Y.S.2d 594). Thus, the Court Attorney Referee lacked jurisdiction to issue the order dated August 15, 2012 ( see Matter of Aslan v. Senturk, 116 A.D.3d 952, 983 N.Y.S.2d 815; Matter of Martinborough v. Martinborough, 98 A.D.3d 511, 949 N.Y.S.2d 462; Matter of Gale v. Gale, 87 A.D.3d 1011, 929 N.Y.S.2d 495). Accordingly, the order dated August 15, 2012, must be reversed and the matter must be remitted to the Family Court, Queens County, for further proceedings, including, but not limited to, the filing of a written report by the Court Attorney Referee setting forth the findings of fact and conclusions of law upon which her recommendation is based ( seeCPLR 4320[b]; see also Matter of Aslan v. Senturk, 116 A.D.3d 952, 983 N.Y.S.2d 815; Matter of McClarin v. Valera, 108 A.D.3d at 720, 968 N.Y.S.2d 899).
In light of our determination, we need not reach the mother's remaining contentions.