Mackenzie M. v. Mary U.

Appellate Division of the Supreme Court of New York

Mackenzie M. v. Mary U.

38 A.D.3d 1249, 834 N.Y.S.2d 595

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 16, 2007

StatusPublished

Cited by1 cases

This text of 38 A.D.3d 1249 (Mackenzie M. v. Mary U.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mackenzie M. v. Mary U., 38 A.D.3d 1249, 834 N.Y.S.2d 595 (N.Y. Ct. App. 2007).

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Opinion

Appeal from an order of the Family Court, Oneida County (John E. Flemma, J.H.O.), entered August 3, 2005 in a proceeding pursuant to Family Court Act article 6. The order, among other things, dismissed the petition of respondents for custody of the child and granted sole custody of the child to petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacat[1250]*1250ing the fourth ordering paragraph and as modified the order is affirmed without costs.

Memorandum:

Family Court properly granted the petition to modify a prior order of custody and visitation by restricting the visitation of respondents with their granddaughter, petitioner’s daughter, and properly denied respondents’ cross petition seeking custody of the child. There is sufficient evidence in the record to support the court’s determination that respondents’ continued unsupervised visitation with the child is not in her best interests (Domestic Relations Law § 72 [1]). With respect to their cross petition, respondents failed to establish that petitioner relinquished his parental right to custody because of surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances (see Matter of Katherine D. v Lawrence D., 32 AD3d 1350 [2006], Iv denied 7 NY3d 717 [2006]; Matter of Gary G. v Roslyn B, 248 AD2d 980, 981 [1998]). In any event, there is no evidence in the record to support a determination that the best interests of the child warrant a change in custody from petitioner to respondents. We conclude, however, that the court erred in ordering that respondents may not make any further application to the court regarding the custody and visitation of the child without the approval of the child’s counselor. The counselor should not be required to pass upon the merits of respondents’ petitions (see Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [1996]). We therefore modify the order accordingly. We have reviewed the remaining contentions on appeal and conclude that they are without merit. Present— Scudder, EJ., Gorski, Centra, Green and Pine, JJ.

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Appeal from an order of the Family Court, Oneida County (John E. Flemma, J.H.O.), entered August 3, 2005 in a proceeding pursuant to Family Court Act article 6. The order, among other things, dismissed the petition of respondents for custody of the child and granted sole custody of the child to petitioner.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by vacat[1250]*1250ing the fourth ordering paragraph and as modified the order is affirmed without costs.

Memorandum:

Family Court properly granted the petition to modify a prior order of custody and visitation by restricting the visitation of respondents with their granddaughter, petitioner’s daughter, and properly denied respondents’ cross petition seeking custody of the child. There is sufficient evidence in the record to support the court’s determination that respondents’ continued unsupervised visitation with the child is not in her best interests (Domestic Relations Law § 72 [1]). With respect to their cross petition, respondents failed to establish that petitioner relinquished his parental right to custody because of surrender, abandonment, persistent neglect, unfitness, or other like extraordinary circumstances (see Matter of Katherine D. v Lawrence D., 32 AD3d 1350 [2006], Iv denied 7 NY3d 717 [2006]; Matter of Gary G. v Roslyn B, 248 AD2d 980, 981 [1998]). In any event, there is no evidence in the record to support a determination that the best interests of the child warrant a change in custody from petitioner to respondents. We conclude, however, that the court erred in ordering that respondents may not make any further application to the court regarding the custody and visitation of the child without the approval of the child’s counselor. The counselor should not be required to pass upon the merits of respondents’ petitions (see Matter of Shreve v Shreve, 229 AD2d 1005, 1006 [1996]). We therefore modify the order accordingly. We have reviewed the remaining contentions on appeal and conclude that they are without merit. Present— Scudder, EJ., Gorski, Centra, Green and Pine, JJ.

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Bluebook (online)

38 A.D.3d 1249, 834 N.Y.S.2d 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mackenzie-m-v-mary-u-nyappdiv-2007.

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