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

494
CAF 13-01776
PRESENT: SCUDDER, P.J., SMITH, PERADOTTO, LINDLEY, AND DEJOSEPH, JJ.


IN THE MATTER OF ALLYSON A. MILLS,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

JOEL T. RIEMAN, RESPONDENT-RESPONDENT.
--------------------------------------
IN THE MATTER OF JOEL T. RIEMAN,
PETITIONER-RESPONDENT,

                    V

ALLYSON A. MILLS, RESPONDENT-APPELLANT.


BOUVIER PARTNERSHIP, LLP, BUFFALO (EMILIO COLAIACOVO OF COUNSEL), FOR
PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.

GLEICHENHAUS, MARCHESE & WEISHAAR, P.C., BUFFALO (CHARLES J. MARCHESE
OF COUNSEL), FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.

MINDY L. MARRANCA, ATTORNEY FOR THE CHILD, BUFFALO.


     Appeal from an order of the Family Court, Erie County (Rosalie
Bailey, J.), entered September 13, 2013 in a proceeding pursuant to
Family Court Act article 6. The order granted Joel T. Rieman sole
custody of the subject child.

     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, Erie County, for further proceedings in
accordance with the following memorandum: In this custody proceeding
pursuant to Family Court Act article 6, petitioner-respondent mother
appeals from an order that modified a prior order by granting sole
legal custody of the parties’ daughter to respondent-petitioner
father. We agree with the mother that “Family Court’s determination
with respect to custody lacks a sound and substantial basis in the
record” (Matter of Thurston v Skellington, 89 AD3d 1520, 1520; see
Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449).

     “[A] custody determination should be made only after a full and
fair hearing at which the record is fully developed” (Matter of Peek v
Peek, 79 AD3d 753, 754; see Barnes v Barnes, 234 AD2d 959, 959).
Here, the court made its determination following a hearing at which,
apart from an in camera interview of the child, the mother was the
                                 -2-                           494
                                                         CAF 13-01776

sole witness. Although the record contains sufficient evidence to
establish that “[t]he relationship of the parties had deteriorated to
such an extent that [the existing joint custody arrangement] was no
longer feasible” (Matter of Thayer v Ennis, 292 AD2d 824, 825; see
Matter of York v Zullich, 89 AD3d 1447, 1448), it “does not contain
sufficient evidence supporting the award of sole legal custody to [the
father]” (Matter of David A.A. v Maryann A., 41 AD3d 1300, 1300; see
Matter of Williams v Williams, 35 AD3d 1098, 1099-1100; cf. Matter of
Tin Tin v Thar Kyi, 92 AD3d 1293, 1293, lv denied 19 NY3d 802).
Indeed, inasmuch as the mother’s testimony raised significant
questions about the father’s parental fitness and the father did not
present any evidence, “we conclude that the [father] failed to
establish that it was in the best interests of the child to award sole
custody to [him]” (Matter of Gelster v Burns, 122 AD3d 1294, 1295, lv
denied 24 NY3d 915).

     Moreover, the court failed to make any findings concerning the
factors that must be considered in making a best interests
determination (see Matter of Avdic v Avdic, 125 AD3d 1534, 1536), and
we conclude that “the record is insufficient for us to make an
independent determination in this regard” (Matter of Martin v Mills,
94 AD3d 1364, 1366; see Matter of Bradbury v Monaghan, 77 AD3d 1424,
1425; Matter of Amato v Amato, 51 AD3d 1123, 1124). We therefore
reverse the order and remit the matter to Family Court for a new
hearing focusing on the best interests of the child (see Bradbury, 77
AD3d at 1424).

     Contrary to the mother’s further contention, we conclude that the
court properly denied her motion to remove the Attorney for the Child
(AFC) (see Matter of Linda S. v Westchester County Dept. of Social
Servs., 63 AD3d 1164, 1164-1165, lv dismissed in part and denied in
part 13 NY3d 825; see also Matter of Leichter-Kessler v Kessler, 71
AD3d 1148, 1149). The record establishes that “the AFC properly
advocated for the wishes of [her] client” (Matter of Swinson v Dobson,
101 AD3d 1686, 1687-1688, lv denied 20 NY3d 862).




Entered:   May 8, 2015                          Frances E. Cafarell
                                                Clerk of the Court
