Matter of Hall v Porter

2008 NY Slip Op 05263

Decided on June 6, 2008

Appellate Division, Fourth Department

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2008


PRESENT: SCUDDER, P.J., MARTOCHE, GREEN, PINE, AND GORSKI, JJ.
921 CAF 06-01253




Appeal from an order of the Family Court, Monroe County (Thomas W. Polito, R.), entered March 21, 2006 in a proceeding pursuant to Family Court Act article 6. The order, among other things, awarded respondent sole custody of the parties' child.


TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (GRAZINA MYERS OF COUNSEL), FOR PETITIONER-APPELLANT.
MARK D. FUNK, ROCHESTER, FOR RESPONDENT-RESPONDENT.
ARDETH L. HOUDE, LAW GUARDIAN, ROCHESTER, FOR DAHKIRA P.


It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: We reject the contention of petitioner father that Family Court did not have jurisdiction to award sole custody of the parties' child to respondent mother because she did not file a cross petition seeking that relief. "[T]he issue of an award of custody to any party was properly before the court [because, i]n a child custody proceeding, a court has the authority to enter orders for custody . . . as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child' " (Matter of Miller v Orbaker, 17 AD3d 1145, 1145-1146, lv denied 5 NY3d 714). Contrary to the father's further contentions, the record supports the court's determination that "the best interests of the child[ ] would be served by supervised visitation at a neutral site" (Matter of Acker v Acker, 212 AD2d 1014, 1014; see Matter of Westfall v Westfall, 28 AD3d 1229, lv denied 7 NY3d 706), and by a gradual increase in the duration of the visits (see Matter of Pettengill v Kirley, 25 AD3d 935, 936). Any error in the court's failure to afford the Law Guardian the opportunity to give a summation does not warrant reversal, inasmuch as the Law Guardian made her position clear to the court at the hearing and, "[n]otably, the Law Guardian does not seek reversal of [the] order [on appeal]" (Matter of Machukas v Wagner, 246 AD2d 840, 842, lv denied 91 NY2d
813).
Entered: June 6, 2008
JoAnn M. Wahl
Clerk of the Court