Barnette v. Blair ( 2008 )

The subject child was born on February 15, 1998 and by stipulation dated May 21, 2003 the parties agreed that the mother would have custody of the child, with liberal visitation to the father. Thereafter, the Family Court issued an order of custody and visitation entered April 6, 2007, which, in relevant part, directed the mother to relocate with the child to an address within a 40-mile radius of the father’s residence.

After the mother relocated with the child to a residence 39.9 miles from the father’s home, the Family Court found that the mother had failed to comply with the 40-mile radius provision in the order entered April 6, 2007. Upon this finding, the Family Court, in an order entered March 7, 2008 without a hearing, awarded custody of the child to the father.

The Family Court’s finding was erroneous and in contravention of its acknowledgment, in open court and in other orders of the same court, that the mother complied with the order entered April 6, 2007 by relocating to a residence within the 40-mile radius (see Potier v Potier, 198 AD2d 180 [1993]). Accordingly, the instant petition should have been denied and the proceeding should have been dismissed. Mastro, J.P., Miller, Angiolillo and Garni, JJ., concur.