Opinion
7845
12-11-2018
In re HILIANA R., Petitioner–Respondent, v. Cesar A.P.J., Respondent–Appellant.
Larry S. Bachner, New York, for appellant. Law Office of Bruce A. Young, New York (Bruce A. Young of counsel), for respondent. Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
Larry S. Bachner, New York, for appellant.
Law Office of Bruce A. Young, New York (Bruce A. Young of counsel), for respondent.
Karen P. Simmons, The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.
Sweeny, J.P., Renwick, Mazzarelli, Oing, Moulton, JJ.
Order, Family Court, Bronx County (Rosanna Mazzotta, Referee), entered on or about March 16, 2018, which, after a fact-finding hearing, granted the petition to modify a prior custody order to award petitioner sole legal and physical custody of the subject child, with respondent to have visitation, "as agreed and arranged by the parties" and facilitated by the paternal uncle, unanimously affirmed, without costs.
Although the father did not give written consent to have the referee determine the petition, as required by CPLR 4317(a), the father implicitly consented by actively participating in the proceedings before the referee, including by testifying and cross-examining the mother, without challenging the referee's jurisdiction (see Matter of Hui C. v. Jian Xing Z., 132 A.D.3d 427, 17 N.Y.S.3d 294 [1st Dept. 2015] ; Matter of Carlos G. [Bernadette M.], 96 A.D.3d 632, 633, 947 N.Y.S.2d 468 [1st Dept. 2012] ).
There is a sound and substantial basis in the record for the referee's determination that a change of circumstances had occurred since the prior custody order was entered when the child was an infant, that joint custody was no longer feasible, and that awarding the mother sole legal and physical custody was in the child's best interests (see Matter of David H. v. Khalima H., 111 A.D.3d 544, 976 N.Y.S.2d 32 [1st Dept. 2013], lv dismissed 22 N.Y.3d 1149, 984 N.Y.S.2d 289, 7 N.E.3d 502 [2014] ; Sendor v. Sendor, 93 A.D.3d 586, 941 N.Y.S.2d 556 [1st Dept. 2012] ).
We have considered the father's remaining arguments and find them unavailing.