| Matter of Fuller v Barreto |
| 2010 NY Slip Op 03004 [72 AD3d 1293] |
| April 15, 2010 |
| Appellate Division, Third Department |
| In the Matter of Amy Fuller, Respondent, v Joshua Barreto,Appellant, et al., Respondent. |
—[*1] The Scagnelli Law Firm, P.C., Albany (Peter J. Scagnelli of counsel), for Amy Fuller,respondent. Eugenia Brennan Heslin, Law Guardian, Hunter.
McCarthy, J. Appeal from an order of the Family Court of Greene County (Lalor, J.), enteredJuly 8, 2008, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, to modify a prior order of custody.
Petitioner and respondent Joshua Barreto (hereinafter the father) are the parents of adaughter (born in 2004). The father was found to have neglected the child and apparently issubject to an order of protection prohibiting him from having any contact with her. He ispresently incarcerated. In May 2007, Family Court awarded custody to petitioner with thecondition that she not remove the child from the court's jurisdiction without prior court approval,and also awarded visitation to respondent Catherine Watson, the child's maternal grandmother.
In 2008, petitioner commenced this proceeding seeking to relocate with the child, continuethe child's weekend visitation with Watson and prohibit the father from exercising any visitation.The father was not present at the initial appearance on the petition. Noting that he was in prisonand had no court-ordered visitation, Family Court concluded that issues regarding [*2]visitation with the father were academic and otherwise granted thepetition. The father appeals.
Initially, we disagree with petitioner's and the Law Guardian's contentions that this appeal ismoot based upon the father subsequently filing a petition for visitation. That petition has notbeen resolved and, in any event, deals with different issues than petitioner's relocation petition(see Matter of Siler v Wright, 64AD3d 926, 927-928 [2009]; Matterof Deuel v Dalton, 33 AD3d 1158, 1159 [2006]; compare Matter of Yishak v Ashera, 68 AD3d 1282, 1284 [2009];Matter of Rebecca O. v Todd P., 309 AD2d 982, 983 [2003]).
Although the record contains the father's mailing address, there is no indication in this recordthat the petition was mailed and, thus, no proof that he had notice of this proceeding (seeFamily Ct Act § 154-a; Matter of Church v Church, 294 AD2d 625, 625-626[2002]).[FN*]Under these circumstances, we reverse and remit for further proceedings on the petition uponproper notice to all parties (cf. Matter ofHohenforst v DeMagistris, 44 AD3d 1114, 1116-1117 [2007]). The provisions of the2008 order regarding relocation and visitation with Watson shall stand as an interim orderpending the determination of Family Court upon remittal.
Cardona, P.J., Peters, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is reversed,on the law, without costs, and matter remitted to the Family Court of Greene County for furtherproceedings not inconsistent with this Court's decision.
Footnote *: Petitioner attached a copy of thesummons to her brief, but that document is not part of the record on appeal. In any event, even ifthe summons contains the father's correct address, the record does not contain proof that thesummons was actually mailed to him at that address.