Opinion
1194 CAF 17–01893
11-16-2018
In the Matter of Michael BROWN, Petitioner–Respondent v. Ariel ORR, Respondent–Petitioner–Appellant.
BENEDICT LAW OFFICE, BATH (MARY HOPE M. BENEDICT OF COUNSEL), FOR RESPONDENT–PETITIONER–APPELLANT. CHAFFEE & LINDER, PLLC, BATH (RUTH A. CHAFFEE OF COUNSEL), FOR PETITIONER–RESPONDENT–RESPONDENT. VIVIAN CLARA STRACHE, BATH, ATTORNEY FOR THE CHILD.
BENEDICT LAW OFFICE, BATH (MARY HOPE M. BENEDICT OF COUNSEL), FOR RESPONDENT–PETITIONER–APPELLANT.
CHAFFEE & LINDER, PLLC, BATH (RUTH A. CHAFFEE OF COUNSEL), FOR PETITIONER–RESPONDENT–RESPONDENT.
VIVIAN CLARA STRACHE, BATH, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, CENTRA, NEMOYER, AND CURRAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition of respondent-petitioner is reinstated, and the matter is remitted to Family Court, Steuben County, for further proceedings in accordance with the following memorandum: Pursuant to a consent order, petitioner-respondent father and respondent-petitioner mother had joint legal custody and shared physical custody of the subject child. After entry of the consent order, each parent filed a modification petition seeking sole custody. Family Court held a hearing and, thereafter, dismissed the mother's petition and, in essence, granted the father's petition. On appeal, the mother contends, and the father and the Attorney for the Child concede, that the court failed to make factual findings to support the award of custody. We agree. It is "well established that the court is obligated ‘to set forth those facts essential to its decision’ " ( Matter of Rocco v. Rocco, 78 A.D.3d 1670, 1671, 910 N.Y.S.2d 826 [4th Dept. 2010] ; see CPLR 4213[b] ; Family Ct Act § 165[a] ). Here, the court utterly failed to follow that well-established rule inasmuch as it made no findings to support its determination. "Effective appellate review, whatever the case but especially in child visitation, custody or neglect proceedings, requires that appropriate factual findings be made by the trial court-the court best able to measure the credibility of the witnesses" ( Matter of Jose L. I., 46 N.Y.2d 1024, 1026, 416 N.Y.S.2d 537, 389 N.E.2d 1059 [1979] ). We therefore reverse the order, reinstate the mother's petition, and remit the matter to Family Court to make a determination on the petitions, including specific findings as to a change in circumstances and the best interests of the child, following an additional hearing if necessary (see Matter of Avdic v. Avdic, 125 A.D.3d 1534, 1536, 4 N.Y.S.3d 792 [4th Dept. 2015] ). Pending the court's determination upon remittal, the custody and visitation provisions in the order appealed from shall remain in effect.