| Matter of Moore v Kazacos |
| 2011 NY Slip Op 08432 [89 AD3d 1546] |
| November 18, 2011 |
| Appellate Division, Fourth Department |
| In the Matter of Crystal Lynn Moore, Respondent, v Michael W.Kazacos, Appellant. |
—[*1] James E. Corl, Jr., Attorney for the Child, Cicero, for Kaiden M.M.
Appeal from an order of the Family Court, Onondaga County (Gina M. Glover, R.), enteredDecember 13, 2010 in a proceeding pursuant to Family Court Act article 6. The order grantedpetitioner sole custody of the parties' child.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this child custody proceeding, respondent father appeals from an order grantingthe petition of the mother seeking sole custody of the parties' infant son. We reject the father'scontention that the Referee erred in failing to consider the factors set forth in Matter of Tropea vTropea (87 NY2d 727, 740-741 [1996]) before awarding custody to the mother, who movedfrom Syracuse to North Carolina shortly after she commenced this proceeding. Inasmuch "[a]s this is aninitial custody determination, it is not necessary to adhere to a strict application of the relevant factors tobe considered in a potential relocation as enunciated in Matter of Tropea v Tropea" (Matter of Lynch v Gillogly, 82 AD3d1529, 1530 [2011]; see Matter ofBaker v Spurgeon, 85 AD3d 1494, 1496 [2011], lv dismissed 17 NY3d 897[2011]; Matter of Schneider v Lascher,72 AD3d 1417 [2010], lv denied 15 NY3d 708 [2010]).
In addition, although the Referee should have made an explicit finding that awarding custody to themother was in the child's best interests, the record is "sufficiently complete" for this Court to make itsown findings (Matter of Ammann v Ammann, 209 AD2d 1032, 1032-1033 [1994]), and weconclude that the Referee's custody award is in the child's best interests. We note that there is nodispute that, as of the hearing date, the father had never seen the child, and the father did not availhimself of opportunities to visit the child during the pendency of the proceeding. Indeed, the father failedto appear at his own house for a scheduled home visit with the Attorney for the Child, who sought toarrange visits for him with the child. Finally, we reject the father's contention that the case should beremitted for the Referee to fashion a more specific visitation schedule. If the father is unable to obtain"open and reasonable parenting time . . . as the parties may agree" pursuant to the order,he may file a petition seeking to enforce or modify the order. Present—Scudder, P.J., Carni,Lindley, Sconiers and Green, JJ.