SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
736.1
CAF 13-01398
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.
IN THE MATTER OF BRANDON L. GUNN,
PETITIONER-RESPONDENT,
V MEMORANDUM AND ORDER
RACHAEL S. GUNN, RESPONDENT-APPELLANT.
D.J. & J.A. CIRANDO, ESQS., SYRACUSE (ELIZABETH deV. MOELLER OF
COUNSEL), FOR RESPONDENT-APPELLANT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (RUPAK R. SHAH OF
COUNSEL), FOR PETITIONER-RESPONDENT.
COURTNEY S. RADICK, ATTORNEY FOR THE CHILDREN, OSWEGO.
Appeal from an order of the Family Court, Onondaga County
(Salvatore Pavone, R.), entered July 25, 2013 in a proceeding pursuant
to Family Court Act article 6. The order, inter alia, awarded
petitioner sole legal and primary physical custody of the parties’
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, Onondaga County, for further proceedings in
accordance with the following memorandum: Respondent mother appeals
from an order entered in July 2013 that, inter alia, awarded
petitioner father sole legal and primary physical custody of the
parties’ children and granted visitation to the mother. The mother
contends that the award of custody to the father was not in the
children’s best interests, that Family Court improperly excluded
hearsay statements of the children that related to abuse and neglect,
and that she was denied effective assistance of counsel. The Attorney
for the Children (AFC), who did not file a notice of appeal, submitted
a brief contending that the award of custody to the father should be
reversed based on a change of circumstances since entry of the order
and because it is in the best interests of the children to live with
the mother, and that the children were denied effective assistance of
counsel because their trial attorney did not file a notice of appeal.
The AFC has submitted new information to this Court that the
children have been living with the mother in Maryland since December
2014, apparently upon the father’s consent. In addition, the AFC and
the mother note that the father’s living arrangement has changed. It
is well settled that “we may ‘take notice of . . . new facts and
-2- 736.1
CAF 13-01398
allegations to the extent they indicate that the record before us is
no longer sufficient for determining [the father’s] fitness and right
to [sole legal and primary physical custody] of [the children]’ ”
(Matter of Nichols v Nichols-Johnson, 78 AD3d 1679, 1680, quoting
Matter of Michael B., 80 NY2d 299, 318; see Matter of Kennedy v
Kennedy, 107 AD3d 1625, 1626). Given the above new information, we
reverse the order and remit the matter to Family Court “for an
expedited hearing on the issue whether the alleged change in
circumstances affects the best interests of the children” (Kennedy,
107 AD3d at 1626; see Matter of Bosque v Blazejewski-D’Amato, 123 AD3d
704, 705). In light of our determination, we do not consider the
contentions of the mother or the remaining contention of the AFC.
Entered: June 12, 2015 Frances E. Cafarell
Clerk of the Court