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

277
CAF 13-00215
PRESENT: SMITH, J.P., FAHEY, LINDLEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF WILFREDO LOPEZ AND SANDRO
LOPEZ, PETITIONERS-RESPONDENTS,

                    V                               MEMORANDUM AND ORDER

JENNIFER LUGO, RESPONDENT-APPELLANT.
------------------------------------------
IN THE MATTER OF WILFREDO LOPEZ,
PETITIONER-RESPONDENT,

                    V

JENNIFER LUGO, RESPONDENT-APPELLANT.
------------------------------------------
IN THE MATTER OF JENNIFER LUGO,
PETITIONER-APPELLANT,

                    V

WILFREDO LOPEZ AND SANDRO LOPEZ,
RESPONDENTS-RESPONDENTS.


KOSLOSKY & KOSLOSKY, UTICA (WILLIAM L. KOSLOSKY OF COUNSEL), FOR
RESPONDENT-APPELLANT AND PETITIONER-APPELLANT.

STEVEN R. FORTNAM, ATTORNEY FOR THE CHILD, WESTMORELAND.

A.J. BOSMAN, ATTORNEY FOR THE CHILD, ROME.


     Appeal from an order of the Family   Court, Oneida County (James R.
Griffith, J.), entered January 14, 2013   in a proceeding pursuant to
Family Court Act article 6. The order,    among other things, awarded
sole custody of the subject children to   Sandro Lopez.

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

     Memorandum: Respondent-petitioner (mother) appeals, as limited
by her notice of appeal, from an order that, inter alia, granted sole
custody of the subject children to petitioner-respondent Sandro Lopez
(father). Initially, we note that the mother’s contentions with
respect to Family Court’s denial of a motion by the Attorney for the
Child (AFC) to withdraw from representing one of the subject children
are not before us on this appeal. The appeal is limited by the
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                                                         CAF 13-00215

mother’s notice of appeal to the issues of custody, parenting time,
contact with the mother’s husband and a grandparent’s visitation, and
thus the mother’s contentions regarding the court’s resolution of the
AFC’s motion to withdraw are not properly before this Court (see Gray
v Williams, 108 AD3d 1085, 1087). In addition, the record on appeal
does not contain the AFC’s motion to withdraw from representing the
subject child. “It is the obligation of the appellant to assemble a
proper record on appeal” (Gaffney v Gaffney, 29 AD3d 857, 857), which
must include all of the relevant papers that were before the motion
court (see Aurora Indus., Inc. v Halwani, 102 AD3d 900, 901). The
mother, “as the appellant, submitted this appeal on an incomplete
record and must suffer the consequences” (Matter of Santoshia L., 202
AD2d 1027, 1028; see Matter of Rodriguez v Ward, 43 AD3d 640, 641; Le
Roi & Assoc. v Bryant, 309 AD2d 1144, 1145).

     The mother failed to preserve for our review her contention that
the AFC representing the other subject child “failed to advocate for
the [child’s] position regarding custody and visitation and thus
failed to provide [him] with effective representation” (Matter of
Brown v Wolfgram, 109 AD3d 1144, 1145; see Matter of Mason v Mason,
103 AD3d 1207, 1207-1208). In any event, the mother’s contention that
both AFCs failed to provide the subject children with effective
representation is without merit. Although an AFC “must zealously
advocate the child’s position” (22 NYCRR 7.2 [d]), an exception exists
where, as here, the AFC “is convinced . . . that following the child’s
wishes is likely to result in a substantial risk of imminent, serious
harm to the child” (22 NYCRR 7.2 [d] [3]; see Mason, 103 AD3d at 1208;
Matter of Swinson v Dobson, 101 AD3d 1686, 1687, lv denied 20 NY3d
862). Both AFCs noted for the court that they were advocating
contrary to their respective clients’ wishes, and both amply
demonstrated the “substantial risk of imminent, serious harm” (22
NYCRR 7.2 [d] [3]), including the mother’s arrest for possession of
drugs in the children’s presence, the numerous weapons that had been
seized from the mother’s house, and the credible evidence establishing
that the mother’s husband assaulted one of the subject children who
attempted to intervene when the husband attacked the mother with an
electrical cord.

     Finally, we reject the mother’s further contention that there is
insufficient evidence supporting the court’s determination awarding
custody of the subject children to the father, with limited visitation
to the mother, and directing that all contact between the mother’s
husband and the subject children be supervised. “The court’s
determination regarding custody and visitation issues, based upon a
first-hand assessment of the credibility of the witnesses after an
evidentiary hearing, is entitled to great weight and will not be set
aside unless it lacks an evidentiary basis in the record” (Matter of
Samuel L.J. v Sherry H., 206 AD2d 886, 886, lv denied 84 NY2d 810).
Here, the record supports the court’s conclusion that the mother
repeatedly violated the court’s orders directing her not to discuss
the litigation with the subject children, as well as the orders
awarding temporary custody of the subject children to their paternal
grandfather. Based on those violations and the dangers to the subject
children discussed above, we conclude that the court’s determination
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                                                         CAF 13-00215

with respect to custody, limited visitation and supervised contact is
in the best interests of the children (see generally Eschbach v
Eschbach, 56 NY2d 167, 172-173).




Entered:   March 21, 2014                       Frances E. Cafarell
                                                Clerk of the Court
