| Matter of Darryl B.W. v Sharon M.W. |
| 2008 NY Slip Op 02331 [49 AD3d 1246] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Darryl B.W., Respondent, v Sharon M.W.,Appellant. |
—[*1] Davison Law Office, Webster (Mary P. Davison of counsel), for petitioner-respondent. Jennifer L. Donlon, Law Guardian, Hornell, for Tonia W. and Grace W.
Appeal from an order of the Family Court, Steuben County (Timothy K. Mattison, J.H.O.),entered February 22, 2007 in a proceeding pursuant to Family Court Act article 6. The order,among other things, granted petitioner physical custody of the parties' children.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Respondent mother appeals from an order granting petitioner father physicalcustody of the parties' two children. We affirm. We note at the outset that, contrary to themother's contention, the record establishes that the parties stipulated that the matter would beheard by a judicial hearing officer (JHO). Although the mother is correct that the JHO did notadequately advise her of her right to assigned counsel at the first court appearance, the recordestablishes that the JHO "eventually assigned counsel to represent [her and, a]t the courtproceedings when [she] was present without counsel . . . , the [JHO] resolved onlytemporary issues of visitation" (Matterof Fralix v Thornock, 9 AD3d 890 [2004]). The mother also is correct that the JHOerred in awarding temporary custody of the children to the father without first conducting ahearing (see Matter of Smith v Patrowski, 226 AD2d 1073 [1996]). "Although temporarycustody may be properly fixed without a hearing where sufficient facts are shown byuncontroverted affidavits" (Robert C.R. v Victoria R., 143 AD2d 262, 264 [1988]), thatwas not the case here. Nevertheless, the error does not require reversal inasmuch as the JHO"subsequently conducted the requisite evidentiary hearing, and the record of that hearing fullysupports the [JHO's] determination following the hearing" (Matter of Humberstone v Wheaton, 21 AD3d 1416, 1418 [2005];see generally Matter of Westfall vWestfall, 28 AD3d 1229, 1230 [2006], lv denied 7 NY3d 706 [2006]; Matter of Booth v Booth, 8 AD3d1104, 1104-1105 [2004], lv denied 3 NY3d 607 [2004]). Present—Smith, J.P.,Centra, Fahey, Peradotto and Green, JJ.