Valenson v. Kenyon

80 A.D.3d 799, 914 N.Y.S.2d 753

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 6, 2011
• Status: Published

Opinion

Garry, J.

Appeal from an order of the Family Court of Saratoga County (Hall, J.), entered December 5, 2008, which partially dismissed petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent Jolene Kenyon (hereinafter the mother) are the parents of one child, born in 1994. In May 2005, respondent Karen Kenyon (hereinafter the grandmother) and her husband obtained an order that granted them physical custody of the child, without prejudice, and allowed either parent to petition for modification. Following the grandfather’s death and other circumstances within the family, the father commenced this proceeding seeking modification of the existing order and primary physical custody of the child. After a hearing, Family Court awarded joint legal custody to the father and the grandmother, with primary physical custody remaining with the grandmother and scheduled visitation for the father.

* The mother appeals.

The appeal must be dismissed, as the mother was not aggrieved by Family Court’s determination (see CPLR 5511). To be aggrieved, a party must have a direct interest in the matter at issue that is affected by the result, and the adjudication must have binding force against the party’s rights, person or property (see Matter of Grace R., 12 AD3d 764, 765 [2004]). The mother was not a custodial parent under the prior order, she sought no change in that status in the 2008 proceeding, and its resolution did not alter her status or affect her legal rights; thus, her direct interests were not affected. Her status as the child’s mother and a party to the proceedings, without more, does not establish that she is aggrieved and, accordingly, she lacks standing to pursue the appeal (see Matter of Brian JJ. v Heather KK., 61 AD3d 1285, 1287 [2009]; Matter of Green v Keough, 32 AD3d 591, 592 [2006]; Matter of Dana XX., 28 AD3d 1025, 1025-1026 [2006]).

Mercure, J.P., Peters, Rose and Malone Jr., JJ., concur. Ordered that the appeal is dismissed, without costs.

The father did not appeal from Family Court’s order nor make any submission upon this appeal indicating his position.