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

1099
CAF 14-00999, CAF 14-02096
PRESENT: SMITH, J.P., CENTRA, VALENTINO, WHALEN, AND DEJOSEPH, JJ.


IN THE MATTER OF TOBIAS WITZIGMAN,
PETITIONER-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JENNIFER WITZIGMAN, RESPONDENT-APPELLANT.
-----------------------------------------
WILLIAM D. BRODERICK, JR., ESQ., ATTORNEY
FOR THE CHILDREN, APPELLANT.


WILLIAM D. BRODERICK, JR., ATTORNEY FOR THE CHILDREN, ELMA, APPELLANT
PRO SE.

WAGNER & HART, LLP, OLEAN (JANINE FODOR OF COUNSEL), FOR
RESPONDENT-APPELLANT.

FERN S. ADELSTEIN, OLEAN, FOR PETITIONER-RESPONDENT.


     Appeals from an order of the Family Court, Cattaraugus County
(Michael L. Nenno, J.), entered April 21, 2014 in a proceeding
pursuant to Family Court Act article 6. The order awarded sole
custody of the parties’ children to petitioner.

     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, Cattaraugus County, for compliance with 22
NYCRR 202.44.

     Memorandum: Respondent mother and the Attorney for the Children
(AFC) appeal from an order adopting the report of the Referee that
recommended granting petitioner father’s petition to modify an
existing custody order. We agree with the AFC that Family Court erred
in adopting the Referee’s report without providing the parties with
notice of the filing of the report and affording them an opportunity
to object to it (see 22 NYCRR 202.44 [a]; Matter of Wilder v Wilder,
55 AD3d 1341, 1341). The record establishes that the Referee was
authorized only to hear the matter and issue a report inasmuch as the
mother did not consent to the referral to the Referee for a final
determination on the father’s petition. We therefore reverse the
order, and we remit the matter to Family Court for compliance with 22
NYCRR 202.44 (see Wilder, 55 AD3d at 1341). Pending the court’s
determination upon remittal, the custody and visitation provisions in
                                 -2-                          1099
                                           CAF 14-00999, CAF 14-02096

the order appealed from shall remain in effect.




Entered:   October 9, 2015                        Frances E. Cafarell
                                                  Clerk of the Court
