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

112
CAF 14-00045
PRESENT: SMITH, J.P., CARNI, LINDLEY, AND VALENTINO, JJ.


IN THE MATTER OF LATESHA S. MAYES,
PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

THOMAS D. LAPLATNEY, RESPONDENT-RESPONDENT.


KELLY M. CORBETT, FAYETTEVILLE, FOR PETITIONER-APPELLANT.

D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR RESPONDENT-RESPONDENT.

LOURDES P. ROSARIO, ATTORNEY FOR THE CHILD, SYRACUSE.


     Appeal from an order of the Family Court, Onondaga County
(Salvatore Pavone, R.), entered December 26, 2013 in a proceeding
pursuant to Family Court Act article 6. The order, among other
things, awarded the parties joint legal and shared physical custody of
the subject child.

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

     Memorandum: In this proceeding pursuant to Family Court Act
article 6, petitioner mother appeals from an order awarding the
parties joint legal custody and shared physical custody of their
child. According to the mother, the Referee who presided over the
evidentiary hearing should have awarded her sole legal custody and
primary physical custody. Although the Attorney for the Child (AFC)
concludes that the Referee’s custody award was proper, the AFC
nevertheless asks us to remit the matter for “further review” in light
of events that have occurred since entry of the order. We affirm.

     As a preliminary matter, we note that the mother, at the end of
the trial, informed the Referee that, although she was seeking primary
physical custody, she was not opposed to the parties having joint
legal custody. Thus, she should not now be heard to complain that the
Referee erred in failing to award her sole legal custody. In any
event, there is a sound and substantial basis in the record to support
the Referee’s award of joint legal custody, inasmuch as, despite
conflicts between them, “the parties are not so embattled and
embittered as to effectively preclude joint decision making”
(Capodiferro v Capodiferro, 77 AD3d 1449, 1450 [internal quotation
marks omitted]). We similarly conclude that there is a sound and
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                                                         CAF 14-00045

substantial basis in the record to support the Referee’s award of
shared physical custody (see generally Matter of Misty D.B. v David
M.S., 38 AD3d 1317, 1317; Wideman v Wideman, 38 AD3d 1318, 1319).
Although the mother had been the child’s primary caregiver since
birth, other factors weighed in favor of giving the father equal time
with the child. In sum, the record reflects that the Referee’s
determination with respect to the parenting schedule was “the product
of ‘careful weighing of [the] appropriate factors’ ” (Matter of McLeod
v McLeod, 59 AD3d 1011, 1011), and we perceive no basis to disturb it.

     We agree with the mother that the Referee abused his discretion
in refusing to allow the child’s maternal grandmother to testify as a
fact witness at trial. Although the mother failed to include her on
the witness list 14 days prior to trial, as directed by Family Court’s
scheduling order, the father was not prejudiced by the late notice
because he was informed five days prior to trial of the mother’s
request to call the witness, and there is no indication in the record
that the mother’s failure to comply with the scheduling order was
willful, contumacious or motivated by bad faith (see Matter of F/B
Children, 161 AD2d 459, 462; see generally Breen v Laric Entertainment
Corp., 2 AD3d 298, 300; Halley v Winnicki, 255 AD2d 489, 489-490).
Nevertheless, we conclude that the error is harmless inasmuch as the
witness in question did testify at trial, albeit on rebuttal, and the
mother does not specify what testimony the witness could have given on
direct examination that was not offered by the mother herself.

     Finally, we decline the AFC’s invitation to remit the matter for
further proceedings in light of events that have taken place
subsequent to entry of the order on appeal (cf. Matter of Kennedy v
Kennedy, 107 AD3d 1625, 1626). Those events may be more properly
considered by Family Court pursuant to a petition to modify custody
based upon a change in circumstances.




Entered:   February 13, 2015                    Frances E. Cafarell
                                                Clerk of the Court
