| Matter of Cisse v Graham |
| 2011 NY Slip Op 06488 [87 AD3d 1008] |
| September 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Rokhaya Cisse, Appellant, v ChristopherGraham, Respondent. |
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Christopher Graham, West Babylon, N.Y., respondent pro se. Marc E. Strauss, Jamaica, N.Y., Attorney for the Child.
In a proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by herbrief, from so much of an order of the Family Court, Queens County (Ebrahimoff, Ct. Atty. Ref.),dated March 18, 2010, as granted the father's application to modify the visitation schedulecontained in an order of the same court (Clark, J.), dated June 30, 2004, to allow the subject childto attend rehearsal for her first communion, the ceremony for her first communion, and anyassociated celebrations.
Ordered that the appeal is dismissed as academic, without costs or disbursements.
The mother, who is Muslim, and the father, who is Roman Catholic, have one child together,a daughter born on March 24, 2001. In an order dated June 30, 2004 (hereinafter the custodyorder), the Family Court awarded custody of the subject child to the mother and visitation to thefather, with such visitation to occur pursuant to a stipulation signed by the parties. In a separateorder, also dated June 30, 2004, made pursuant to the aforementioned stipulation, the FamilyCourt provided, among other things, that the child was "to be exposed to the Catholic traditionsand Muslim traditions." In an order dated August 31, 2005, the parties stipulated to the fatherhaving additional visitation time in 2005.
Subsequently, the mother filed a petition, in effect, to modify the visitation provisions of theaforementioned orders and the father filed a petition to modify the custody order by awardinghim custody of the child. During the pendency of those proceedings, the Family Court issued anorder dated August 7, 2009, which modified the June 30, 2004, order made upon the parties'stipulation by directing that "either or both parents may enroll the child in religious instruction intheir faith."
When the parties appeared before the Family Court on March 15, 2010, for a continuedhearing on the petitions, the father, through counsel, requested a temporary change in thevisitation schedule to allow the child, in May 2010, to attend rehearsal for her first communion,the [*2]ceremony for her first communion at the father's RomanCatholic church, and any associated celebrations. Despite the mother's objection, in an orderdated March 18, 2010, the Family Court granted the father's application. The mother appeals.
"It is a fundamental principle of our jurisprudence that the power of a court to declare the lawonly arises out of, and is limited to, determining the rights of persons which are actuallycontroverted in a particular case pending before the tribunal" (Matter of Hearst Corp. vClyne, 50 NY2d 707, 713 [1980]). "In general an appeal will be considered moot unless therights of the parties will be directly affected by the determination of the appeal and the interest ofthe parties is an immediate consequence of the judgment" (id. at 714; see Funderburke v New York State Dept. ofCiv. Serv., 49 AD3d 809, 811 [2008]).
Contrary to the opinion of our dissenting colleague, the rights of the parties will not bedirectly affected by a determination of this appeal because the events associated with thetemporary modification of the father's visitation schedule have already occurred, as conceded bythe mother in her brief. Accordingly, the appeal is moot and may not properly be decided by thisCourt unless the exception to the mootness doctrine applies (see Matter of Hearst Corp. vClyne, 50 NY2d at 714; Matter ofShellfish, Inc. v New York State Dept. of Envtl. Conservation, 76 AD3d 975, 977[2010]). The exception to the mootness doctrine occurs where the controversy or issue involvedis "likely to recur, typically evades review, and raises a substantial and novel question"(Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 811 [2003], certdenied 540 US 1017 [2003]; see Matter of Hearst Corp. v Clyne, 50 NY2d at714-715). Here, no exception to the mootness doctrine is argued or present (see Matter of Campo Bros. v Town ofBrookhaven, 56 AD3d 468, 469 [2008]), and "the courts are prohibited from renderingpurely advisory opinions absent an exception to the mootness doctrine" (People ex rel. Crow v Warden, Anna M.Kross Detention Ctr., 76 AD3d 646 [2010]; see Matter of Paraskevopoulos v Stavropoulos, 65 AD3d 1153,1154 [2009]; Funderburke v New York State Dept. of Civ. Serv., 49 AD3d at 811).Accordingly, we dismiss the appeal as academic. Covello, J.P., Angiolillo and Dickerson, JJ.,concur.
Hall, J., dissents and votes to decide the appeal on the merits, reverse the order insofar asappealed from, and deny the father's application to modify the visitation schedule contained inthe order dated June 30, 2004, with the following memorandum: I respectfully dissent from theconclusion reached by the majority because, in my view, the issue raised on this appeal is notacademic.
It is well-settled that "an appeal will be considered moot unless the rights of the parties willbe directly affected by the determination of the appeal and the interest of the parties is animmediate consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 NY2d 707,714 [1980]). Considering the particular circumstances of this case, I believe that a determinationof this Court would directly affect the rights of the parties (see Matter of Utica Mut. Ins. Co. [Selective Ins. Co. of Am.], 27 AD3d990, 991-992 [2006]). The central dispute between the parties is the religious upbringing ofthe child. The order dated March 18, 2010, which permitted the child to attend the communionrehearsal, communion ceremony, and any associated celebrations, in effect, allowed the child toparticipate in a sacrament of the Roman Catholic religion without the mother's consent. Eventhough the child's First Communion has already occurred, a determination of this Court willaffect the rights of the parties by setting a standard for the type of conduct that goes beyondmerely exposing the child to either the Roman Catholic or Muslim traditions, or merely enrollingthe child in religious instruction. I also note that, since the father has substantial visitation withthe child, there is a "likelihood of repetition" with respect to this issue (Matter of HearstCorp. v Clyne, 50 NY2d at 714).
As to the merits of the appeal, I find that the Family Court went beyond merely [*3]enforcing the parties' agreement and the order dated August 7,2009, and, instead, impermissibly interfered with the mother's rights as the custodial parent(see People ex rel. Sisson v Sisson, 271 NY 285 [1936]; Matter of De Luca v DeLuca, 202 AD2d 580, 581 [1994]; Stevenot v Stevenot, 133 AD2d 820 [1987];cf. Matter of Arain v Arain, 209 AD2d 406 [1994]). Bringing the child to rehearsal forher First Communion, and having the child participate in her First Communion, went beyondmere exposure to Roman Catholic traditions. Participating in the sacrament of Communion alsowent beyond religious instruction. Pursuant to the June 30, 2004, and August 7, 2009, orders, theparties are permitted to expose the child to the Roman Catholic and Muslim traditions, and toenroll the child in religious instruction in their respective faiths. These orders do not give thefather the unilateral authority to have the child participate in a sacrament of the Roman Catholicreligion. Therefore, the Family Court erred in modifying the father's visitation schedule, in effect,to allow the child to receive her First Communion. Accordingly, I vote to decide the appeal onthe merits, reverse the order insofar as appealed from, and deny the father's application.