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

1227
CAF 13-00873
PRESENT: SCUDDER, P.J., CENTRA, LINDLEY, SCONIERS, AND VALENTINO, JJ.


IN THE MATTER OF MARY L. KESSLER, PETITIONER,

                    V                             MEMORANDUM AND ORDER

SCOTT M. FANCHER, RESPONDENT-RESPONDENT.
---------------------------------------------
SCOTT A. OTIS, ATTORNEY FOR THE CHILDREN,
APPELLANT.
(APPEAL NO. 2.)


SCOTT A. OTIS, WATERTOWN, APPELLANT PRO SE.

MARY L. KESSLER, PETITIONER PRO SE.

SCOTT M. FANCHER, RESPONDENT-RESPONDENT PRO SE.


     Appeal from an order of the Family Court, Jefferson County (Peter
A. Schwerzmann, A.J.), entered September 10, 2012 in a proceeding
pursuant to Family Court Act article 6. The order dismissed the
petition for modification of a custody order.

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

     Memorandum: The Attorney for the Children (AFC) appeals from a
decision of Family Court dismissing various petitions filed by the
parents of two minor children. We note at the outset that no appeal
lies from a decision (see Pecora v Lawrence, 28 AD3d 1136, 1137). We
exercise our discretion, however, to treat the notice of appeal as
valid and deem the appeals as taken from the seven orders in the
respective appeals that were entered upon the single decision (see
CPLR 5520 [c]).

     We conclude that the children are not aggrieved by the orders in
appeal Nos. 1 and 3 through 6 inasmuch as those orders dismissed
petitions filed by one parent alleging that the other parent had
violated an order of custody or seeking a personal order of protection
against the other parent (see Matter of Lagano v Soule, 86 AD3d 665,
666 n 4; see generally Parochial Bus Sys. v Board of Educ. of City of
N.Y., 60 NY2d 539, 544-545; Mixon v TBV, Inc., 76 AD3d 144, 148-149).
Moreover, inasmuch as the AFC opposed the relief requested in the
petition in appeal No. 7, we conclude that the children are not
aggrieved by the order dismissing that petition. We therefore dismiss
the AFC’s appeals from the orders in appeal Nos. 1 and 3 through 7.
                                 -2-                          1227
                                                         CAF 13-00873

     With respect to the order in appeal No. 2, which dismissed the
petition of Mary L. Kessler (mother) seeking modification of a custody
order, the mother has not taken an appeal from that order. The
children, while dissatisfied with the order, cannot force the mother
to litigate a petition that she has since abandoned (see Matter of
McDermott v Bale, 94 AD3d 1542, 1543-1544). As we wrote in McDermott,
“children in custody cases should [not] be given full-party status
such that their consent is necessary to effectuate a settlement . . .
There is a significant difference between allowing children to express
their wishes to the court and allowing their wishes” to chart the
course of litigation (id. at 1543). We thus affirm the order in
appeal No. 2 and see no need to address the AFC’s remaining
contentions.




Entered:   December 27, 2013                   Frances E. Cafarell
                                               Clerk of the Court
