        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

466
CAF 11-02558
PRESENT: SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF BRIAN S. FONTAINE,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

MARY K. FONTAINE, RESPONDENT-RESPONDENT.


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
PETITIONER-APPELLANT.

BRUCE R. BRYAN, SYRACUSE, FOR RESPONDENT-RESPONDENT.

KAREN J. DOCTER, ATTORNEY FOR THE CHILDREN, FAYETTEVILLE, FOR GABRIELA
F. AND ANNA F.


     Appeal from an order of the Family Court, Onondaga County (Gina
M. Glover, R.), entered March 28, 2011 in a proceeding pursuant to
Family Court Act article 6. The order, inter alia, granted supervised
visitation to petitioner.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the matter is
remitted to Family Court, Onondaga County, for further proceedings in
accordance with the following Memorandum: On appeal from an order
directing, inter alia, that petitioner father’s visitation with the
parties’ children shall continue to be supervised, the father contends
that the Court Attorney Referee erred “in failing to set forth those
facts essential to [her] decision” (Matter of Bradbury v Monaghan, 77
AD3d 1424, 1424 [internal quotation marks omitted]). We agree. We
note at the outset that, according to the order of the Court Attorney
Referee, the parties stipulated that the Court Attorney Referee
(hereafter, court) would hear and determine the petition. “Effective
appellate review . . . requires[, however], that appropriate factual
findings be made by the [hearing] court—the court best able to measure
the credibility of the witnesses” (Matter of Jose L. I., 6 NY2d 1024,
1026). “Inasmuch as ‘the record is not sufficient to enable this
Court to make the requisite findings of fact,’ ” we reverse the order
and remit the matter to Family Court for a new hearing on the petition
(Bradbury, 77 AD3d at 1425), including a new in camera hearing with
the children (see Matter of Lincoln v Lincoln, 24 NY2d 270).

     In light of our determination, we must address only one of the
father’s remaining contentions, i.e., that the court improperly
allowed the Attorney for the Children to approve visitation
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                                                         CAF 11-02558

supervisors. We reject that contention (see Matter of Kruty v Manell,
248 AD2d 809, 811; see also Matter of Vieira v Huff, 83 AD3d 1520,
1521). In doing so, we note that the court did not improperly
delegate the determination of an issue involving the best interests of
the children, “i.e., whether [unsupervised] visitation should resume
and, if so, when” (Matter of Hameed v Alatawaneh, 19 AD3d 1135, 1136;
cf. Matter of Battista v Battista, 294 AD2d 941; Wills v Wills, 283
AD2d 1023, 1024).




Entered:   April 20, 2012                      Frances E. Cafarell
                                               Clerk of the Court
