Carter v. Kratzenberg

209 A.D.2d 990, 619 N.Y.S.2d 456, 1994 N.Y. App. Div. LEXIS 12009

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 16, 1994
• Status: Published

Opinion

— Order unanimously reversed on the law without costs and matter remitted to Oneida County Family Court for further proceedings in accordance with the following Memorandum: Family Court awarded custody of the parties’ child to petitioner upon the express condition that petitioner and the child continue to reside with the paternal grandmother, and further provided that, in the event either petitioner or the child relocates from the paternal grandmother’s residence, custody shall automatically and immediately be transferred to respondent. That was error. No one factor is determinative of whether there should be a change in custody (Friederwitzer v Friederwitzer, 55 NY2d 89, 95). The court erred also in failing to set forth the ultimate facts upon which the rights and liabilities of the parties depend (see, Matter of Jose L. L, 46 NY2d 1024, 1025-1026; CPLR 4213 [b]). Therefore, we remit the matter to Family Court to determine which party should be awarded custody in the best interests of the child. (Appeals from Order of Oneida County Family Court, Flemma, J.— Custody.) Present—Pine, J. P., Lawton, Fallon, Davis and Boehm, JJ.