Opinion
2014-03-21
In the Matter of Wilfredo LOPEZ and Sandro Lopez, Petitioners-respondents, v. Jennifer LUGO, Respondent–Appellant. In the Matter of Wilfredo Lopez, Petitioner–Respondent, v. Jennifer Lugo, Respondent–Appellant. In the Matter of Jennifer Lugo, Petitioner–Appellant, v. Wilfredo Lopez and Sandro Lopez, Respondents–Respondents.
Koslosky & Koslosky, Utica (William L. Koslosky of Counsel), for Respondent–Appellant and Petitioner–Appellant. Steven R. Fortnam, Attorney for the Child, Westmoreland.
Koslosky & Koslosky, Utica (William L. Koslosky of Counsel), for Respondent–Appellant and Petitioner–Appellant. Steven R. Fortnam, Attorney for the Child, Westmoreland.
A.J. Bosman, Attorney for the Child, Rome.
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.
MEMORANDUM:
Respondent-petitioner (mother) appeals, as limited by her notice of appeal, from an order that, inter alia, granted sole custody of the subject children to petitioner-respondent Sandro Lopez (father). Initially, we note that the mother's contentions with respect to Family Court's denial of a motion by the Attorney for the Child (AFC) to withdraw from representing one of the subject children are not before us on this appeal. The appeal is limited by the mother's notice of appeal to the issues of custody, parenting time, contact with the mother's husband and a grandparent's visitation, and thus the mother's contentions regarding the court's resolution of the AFC's motion to withdraw are not properly before this Court ( see Gray v. Williams, 108 A.D.3d 1085, 1087, 969 N.Y.S.2d 334). In addition, the record on appeal does not contain the AFC's motion to withdraw from representing the subject child. “It is the obligation of the appellant to assemble a proper record on appeal” (Gaffney v. Gaffney, 29 A.D.3d 857, 857, 815 N.Y.S.2d 259), which must include all of the relevant papers that were before the motion court ( see Aurora Indus., Inc. v. Halwani, 102 A.D.3d 900, 901, 958 N.Y.S.2d 479). The mother, “as the appellant, submitted this appeal on an incomplete record and must suffer the consequences” (Matter of Santoshia L., 202 A.D.2d 1027, 1028, 609 N.Y.S.2d 724;see Matter of Rodriguez v. Ward, 43 A.D.3d 640, 641, 842 N.Y.S.2d 622;Le Roi & Assoc. v. Bryant, 309 A.D.2d 1144, 1145, 764 N.Y.S.2d 889).
The mother failed to preserve for our review her contention that the AFC representing the other subject child “failed to advocate for the [child's] position regarding custody and visitation and thus failed to provide [him] with effective representation” (Matter of Brown v. Wolfgram, 109 A.D.3d 1144, 1145, 971 N.Y.S.2d 715;see Matter of Mason v. Mason, 103 A.D.3d 1207, 1207–1208, 959 N.Y.S.2d 577). In any event, the mother's contention that both AFCs failed to provide the subject children with effective representation is without merit. Although an AFC “must zealously advocate the child's position” (22 NYCRR 7.2[d] ), an exception exists where, as here, the AFC “is convinced ... that following the child's wishes is likely to result in a substantial risk of imminent, serious harm to the child” (22 NYCRR 7.2[d] [3]; see Mason, 103 A.D.3d at 1208, 959 N.Y.S.2d 577;Matter of Swinson v. Dobson, 101 A.D.3d 1686, 1687, 956 N.Y.S.2d 765,lv. denied20 N.Y.3d 862, 2012 WL 7801756). Both AFCs noted for the court that they were advocating contrary to their respective clients' wishes, and both amply demonstrated the “substantial risk of imminent, serious harm” (22 NYCRR 7.2[d][3] ), including the mother's arrest for possession of drugs in the children's presence, the numerous weapons that had been seized from the mother's house, and the credible evidence establishing that the mother's husband assaulted one of the subject children who attempted to intervene when the husband attacked the mother with an electrical cord.
Finally, we reject the mother's further contention that there is insufficient evidence supporting the court's determination awarding custody of the subject children to the father, with limited visitation to the mother, and directing that all contact between the mother's husband and the subject children be supervised. “The court's determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record” (Matter of Samuel L.J. v. Sherry H., 206 A.D.2d 886, 886, 616 N.Y.S.2d 312,lv. denied84 N.Y.2d 810, 621 N.Y.S.2d 520, 645 N.E.2d 1220). Here, the record supports the court's conclusion that the mother repeatedly violated the court's orders directing her not to discuss the litigation with the subject children, as well as the orders awarding temporary custody of the subject children to their paternal grandfather. Based on those violations and the dangers to the subject children discussed above, we conclude that the court's determination with respect to custody, limited visitation and supervised contact is in the best interests of the children ( see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.