Opinion
121 CAF 21-00990
02-10-2023
In the Matter of Denise IANELLO, Petitioner-Respondent, v. Justin COLONOMOS, Respondent-Appellant.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT. DAVID J. PAJAK, ALDEN, FOR PETITIONER-RESPONDENT. BRIAN P. DEGNAN, BATAVIA, ATTORNEY FOR THE CHILD.
CHARLES J. GREENBERG, AMHERST, FOR RESPONDENT-APPELLANT.
DAVID J. PAJAK, ALDEN, FOR PETITIONER-RESPONDENT.
BRIAN P. DEGNAN, BATAVIA, ATTORNEY FOR THE CHILD.
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, MONTOUR, AND OGDEN, JJ.
MEMORANDUM AND ORDER 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, Genesee County, for further proceedings in accordance with the following memorandum: On appeal from an order that, inter alia, awarded the parties joint legal custody of the subject child with primary physical custody to petitioner mother, respondent father contends that Family Court's determination does not have a sound and substantial basis in the record. The court, in the order on appeal, however, failed to make any factual findings whatsoever to support the award of primary physical custody. 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] [emphasis added]; see CPLR 4213 [b] ; Family Ct Act § 165 [a] ; Matter of Brown v. Orr , 166 A.D.3d 1583, 1583, 85 N.Y.S.3d 913 [4th Dept. 2018] ). Here, the court completely failed to follow that well-established rule when it failed to issue any factual findings to support its initial custody determination (see Brown , 166 A.D.3d at 1583-1584, 85 N.Y.S.3d 913 ), nor did it make any findings with respect to the relevant factors that it considered in making a best interests of the child determination (see Matter of Avdic v. Avdic , 125 A.D.3d 1534, 1536, 4 N.Y.S.3d 792 [4th Dept. 2015] ; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 172-173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Fox v. Fox , 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] ). "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 and remit the matter to Family Court to make a determination on the petition and cross petition, including specific findings as to the best interests of the child, following an additional hearing if necessary (see Brown , 166 A.D.3d at 1584, 85 N.Y.S.3d 913 ; Avdic , 125 A.D.3d at 1536, 4 N.Y.S.3d 792 ). Pending the court's determination upon remittal, the custody and visitation provisions in the order appealed from shall remain in effect.