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

577
CAF 12-00601
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.


IN THE MATTER OF DANIEL F. KENNEDY,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

ASHLEY LAUREN KENNEDY, RESPONDENT-RESPONDENT.
---------------------------------------------
KRISTIN KOZLOWSKI, ESQ., ATTORNEY FOR THE
CHILDREN, APPELLANT.


BERNADETTE M. HOPPE, BUFFALO, FOR PETITIONER-APPELLANT.

KRISTIN KOZLOWSKI, ATTORNEY FOR THE CHILDREN, CHEEKTOWAGA, APPELLANT
PRO SE.

EUGENE P. ADAMS, BUFFALO, FOR RESPONDENT-RESPONDENT.


     Appeals from an order of the Family Court, Erie County (Tracey A.
Kassman, R.), entered March 19, 2012 in a proceeding pursuant to
Family Court Act article 6. The order, among other things, designated
respondent the primary residential custodian of the subject children.

     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: Petitioner father and the
Attorney for the Children (hereafter, appellants) appeal from an order
in a proceeding pursuant to Family Court Act article 6 that, inter
alia, awarded primary physical custody of the parties’ two children to
respondent mother. Appellants contend that Family Court’s
determination lacked a sound and substantial basis in the record, that
the court relied on a flawed expert evaluation, that the court failed
to consider all of the factors in determining the best interests of
the children, and that the court misapplied the standard set forth in
Tropea v Tropea (87 NY2d 727) in reaching its determination. We
conclude that the expert’s report relied upon by the court was of
“ ‘limited utility’ ” inasmuch as it highlighted challenges faced by
the father and downplayed similar challenges faced by the mother
(Matter of Dobies v Brefka, 83 AD3d 1148, 1151-1152). We reject
appellants’ remaining contentions. In any event, this Court has been
advised of facts and circumstances that have changed during the
pendency of the appeal, and we therefore conclude that “the record
before us is no longer sufficient for determining [the mother’s]
fitness and right” to primary physical custody of the children (Matter
                                 -2-                           577
                                                         CAF 12-00601

of Michael B., 80 NY2d 299, 318). Specifically, in deciding the
custody issue in the mother’s favor, the court relied on evidence that
the mother had become self-supporting and was living in her own
apartment. We have now been informed, however, that the mother has
since lost her job and her apartment and has moved in with her own
mother. We therefore reverse the order and remit the matter to Family
Court for an expedited hearing on the issue whether the alleged change
of circumstances affects the best interests of the children.




Entered:   June 28, 2013                       Frances E. Cafarell
                                               Clerk of the Court
