Michael GG. v. Melissa HH.

89 A.D.3d 1291, 932 N.Y.2d 588

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 17, 2011
• Status: Published

Opinion

Kavanagh, J.

The parties are the parents of a son (born in 2006) and, pursuant to a June 2007 Family Court order, they shared joint legal custody, with primary physical custody residing with respondent (hereinafter the mother). After petitioner (hereinafter the father) discovered that the mother and the subject child were living in squalid conditions, he commenced a proceeding in July 2009 seeking to modify custody.

* Following hearings, Family Court awarded sole physical and legal custody to the father with limited visitation to the mother. The mother appeals.

The mother’s counsel seeks to be relieved of her assignment on the ground that there are no nonfrivolous issues to be pursued on appeal (see Anders v California, 386 US 738 [1967]; Jennifer HH. v Veronica II., 70 AD3d 1072, 1073 [2010]). However, we concur with the attorney for the child that the record reveals at least one potentially nonfrivolous issue, namely whether it was proper for Family Court to award sole legal custody of the child to the father. Accordingly, without expressing any opinion as to the ultimate merits, we grant counsel’s request to be relieved of the assignment and will assign new appellate counsel to address this issue and any other nonfrivolous issues that the record may disclose (see Matter of Marchand v Nazzaro, 48 AD3d 1007 [2008]; Matter of Taylor v Fry, 42 AD3d 680, 681 [2007]).

Rose, J.E, Lahtinen, McCarthy and Garry, JJ., concur. Ordered that the decision is withheld, application to be relieved of assignment granted and new counsel to be assigned.

The father also filed a family offense petition, which Family Court dismissed.