SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

976 

CAF 13-00557 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF KATHERINE D. WARREN, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

CHRISTOPHER J. MILLER, RESPONDENT-APPELLANT. 

(APPEAL NO. 1.) 

 

THE ABBATOY LAW FIRM, PLLC, ROCHESTER (DAVID M. ABBATOY, JR., OF

COUNSEL), FOR RESPONDENT-APPELLANT. 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (JANE I. YOON OF

COUNSEL), FOR PETITIONER-RESPONDENT.

LORENZO NAPOLITANO, ATTORNEY FOR THE CHILD, ROCHESTER. 

 

Appeal from an amended order of the Family Court, Monroe County

(Julie Anne Gordon, R.), entered January 25, 2013 in a proceeding

pursuant to Family Court Act article 6. The amended order, among

other things, granted petitioner sole custody of the subject child.

It is hereby ORDERED that the amended order so appealed from is 

unanimously affirmed without costs.

Memorandum: Petitioner-respondent mother commenced the

proceeding in appeal No. 1 to modify the parties’ existing visitation

schedule with respect to the parties’ child. Family Court sua sponte

determined, however, that the existing joint custody arrangement was

unworkable and entered an amended order awarding sole custody and

primary physical residence to the mother, and visitation and access to

respondent-petitioner father. The father appeals from that amended

order in appeal No. 1. In appeal No. 2, the father appeals from an

order dismissing his order to show cause and petition to modify the

amended order in appeal No. 1. We now affirm in appeal No. 1.

The father contends in appeal No. 1 that the court lacked

jurisdiction to determine the issue of custody. We reject that

contention. Even without an application for sole custody by one of

the parties, the court herein had the authority to address the issue

of custody inasmuch as the parties were “adequately apprised prior to

the hearing that custody was at issue, and . . . had a sufficient

opportunity to present any testimony and evidence relevant to the

issue of custody” (Matter of Heintz v Heintz, 28 AD3d 1154, 1155). 

“Once [the court] determine[s] that joint custody [is] not feasible,
-2- 976 

CAF 13-00557 

it [becomes] incumbent upon [the court] to determine a custodial

arrangement based upon the best interests of the child[] despite the

absence of a petition definitively seeking sole custody” (Matter of

Mahoney v Regan, 100 AD3d 1237, 1237-1238 [internal quotation marks

omitted], lv denied 20 NY3d 859; see Heintz, 28 AD3d at 1154-1155;

Matter of Miller v Orbaker, 17 AD3d 1145, 1145-1146, lv denied 5 NY3d

714).

In the instant case, the record establishes that the court

informed the parties on two occasions prior to the hearing that sole

custody would be at issue. In addition, during the hearing, and

before the father engaged in cross-examination or called his first

witness, the court specifically warned the father that he could lose

custody if he failed to present evidence contradicting the mother’s

testimony. We note that the father demonstrated his understanding of

the court’s intent to determine the issue of custody by referencing it

during his opening statement, by presenting testimony and evidence in

support of his request therefor and, in his summation, by

characterizing the proceeding as “a contested custody matter” and

specifically requesting that he be awarded sole custody. 

We reject the father’s further contention in appeal No. 1 that

the court’s custody determination lacks a sound and substantial basis

in the record. “Generally a court’s determination regarding custody

and visitation issues, based on its first-hand assessment of the

credibility of the witnesses after an evidentiary hearing, is entitled

to great weight and will not be set aside unless it lacks an

evidentiary basis in the record” (Matter of Dubuque v Bremiller, 79

AD3d 1743, 1744 [internal quotation marks omitted]; see Matter of

Marino v Marino, 90 AD3d 1694, 1695). Here, we conclude that the

court’s determination is supported by the requisite evidentiary basis. 

Notably, the record establishes that the father interfered with the

child’s enrollment in educational programming and that, although the

child was diagnosed with a behavioral disorder, the father refused to

acknowledge the disorder and to administer the child’s prescribed

medication. We therefore see no reason to disturb the court’s

determination. The father’s contentions raised for the first time in

his reply brief are not properly before us (see Matter of Rossborough

v Alatawneh, 129 AD3d 1537, 1538), and we decline to take judicial

notice of items submitted by the father outside of the record on

appeal.

In light of our determination in appeal No. 1, we dismiss the

appeal in appeal No. 2 as moot.

Entered: October 9, 2015 Frances E. Cafarell

Clerk of the Court