Opinion
125 CAF 18–02344
03-13-2020
In the Matter of Gary LATRAY, Petitioner–Appellant, v. Andrea HEWITT, Respondent–Respondent. (Appeal No. 1.)
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR PETITIONER–APPELLANT. STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILDREN.
D.J. & J.A. CIRANDO, PLLC, SYRACUSE (REBECCA L. KONST OF COUNSEL), FOR PETITIONER–APPELLANT.
STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILDREN.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, NEMOYER, AND BANNISTER, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that said appeal from the order insofar as it concerns the parties' oldest child is unanimously dismissed and the order is affirmed without costs.
Memorandum: In appeal No. 1, Gary Latray, the petitioner in appeal No. 1 and the respondent in appeal No. 2 (father), appeals from an order dismissing his petition seeking to modify the parties' existing custody arrangement by awarding him sole custody of the subject children. In appeal No. 2, the father appeals from an order that, in effect, granted the petition of Andrea Hewitt, the respondent in appeal No. 1 and the petitioner in appeal No. 2 (mother), seeking to modify the parties' custody arrangement by establishing a definitive parenting schedule and directed that the parties shall continue to have joint legal and shared physical custody of the children. We note at the outset that the parties' oldest child has attained the age of 18, and we therefore dismiss as moot both appeals from the orders insofar as they concern that child (see Matter of Graham v. Thering , 55 A.D.3d 1319, 1320, 865 N.Y.S.2d 799 [4th Dept. 2008], lv denied 11 N.Y.3d 714, 873 N.Y.S.2d 269, 901 N.E.2d 763 [2008] ).
We reject the father's contention in both appeals that Family Court erred in refusing to award him sole custody of the children and in continuing the preexisting custodial arrangement. "Even assuming, arguendo, that the father met his threshold burden of demonstrating a change in circumstances sufficient to justify a best interests analysis" ( Matter of William F.G. v. Lisa M.B. , 169 A.D.3d 1428, 1430, 92 N.Y.S.3d 805 [4th Dept. 2019] ), we conclude that the court's determination that the preexisting custodial arrangement is in the children's best interests is supported by a sound and substantial basis in the record (see generally Matter of Mayes v. Laplatney , 125 A.D.3d 1488, 1489, 3 N.Y.S.3d 857 [4th Dept. 2015] ).
Although the Attorney for the Children (AFC) contends that the court should have awarded sole custody to the mother, the AFC did not file a notice of appeal, nor did the mother. Thus, the AFC's contention is not properly before us (see generally Matter of Lawrence v. Lawrence , 151 A.D.3d 1879, 1879, 54 N.Y.S.3d 358 [4th Dept. 2017] ; Matter of Kessler v. Fancher , 112 A.D.3d 1323, 1324, 978 N.Y.S.2d 501 [4th Dept. 2013] ).