Opinion
02-10-2017
In the Matter of Justin E. KIEFFER, Petitioner–Respondent, v. Delema DEFRAIN, Respondent–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Respondent–Appellant. Conboy, McKay, Bachman & Kendall, LLP, Watertown (Matthew J. Porter of Counsel), for Petitioner–Respondent. Ruthanne G. Sanchez, Attorney for the Child, Watertown.
D.J. & J.A. Cirando, Esqs., Syracuse (Elizabeth Dev. Moeller of Counsel), for Respondent–Appellant.Conboy, McKay, Bachman & Kendall, LLP, Watertown (Matthew J. Porter of Counsel), for Petitioner–Respondent.
Ruthanne G. Sanchez, Attorney for the Child, Watertown.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND SCUDDER, JJ.
MEMORANDUM:In this proceeding pursuant to Family Court Act article 6, respondent mother appeals from an order that, inter alia, modified a prior order entered on stipulation of the parties by awarding petitioner father primary physical residence of the parties' child. Contrary to the mother's contention, we conclude that Family Court properly determined that the father met his burden of establishing a change in circumstances sufficient to warrant an inquiry into whether a change of custody is in the best interests of the child (see Matter of Murphy v. Wells, 103 A.D.3d 1092, 1093, 958 N.Y.S.2d 560, lv. denied 21 N.Y.3d 854, 2013 WL 1831640 ; Matter of Markey v. Bederian, 274 A.D.2d 816, 817–818, 710 N.Y.S.2d 482 ; Matter of Brewer v. Whitney, 245 A.D.2d 842, 843, 666 N.Y.S.2d 354 ). Contrary to the mother's further contention, there is a sound and substantial basis in the record for the court's determination that it is in the child's best interests to award the father primary physical residence of the child and to award visitation with the mother (see Matter of Tuttle v. Tuttle, 137 A.D.3d 1725, 1726, 28 N.Y.S.3d 755 ; see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). In addition, we reject the mother's contention that she was denied effective assistance of counsel (see Matter of Nicholson v. Nicholson, 140 A.D.3d 1689, 1690, 34 N.Y.S.3d 289, lv. denied 28 N.Y.3d 903, 2016 WL 5001222 ; Matter of Brown v. Gandy, 125 A.D.3d 1389, 1390, 3 N.Y.S.3d 486 ).
We agree with the mother, however, that the court erred in sua sponte ordering that the father shall have the right to relocate the residence of the child anywhere in the continental United States with 30 days' notice to the mother inasmuch as that relief was not requested by the parties or the Attorney for the Child (see Matter of Irons v. Schneller, 258 A.D.2d 652, 653, 686 N.Y.S.2d 61 ; see generally Matter of Majuk v. Carbone, 129 A.D.3d 1485, 1485–1486, 12 N.Y.S.3d 410 ). We therefore modify the order accordingly.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating the tenth ordering paragraph and as modified the order is affirmed without costs.