Welch v. Lapp ( 1988 )

— Order unanimously reversed on the law without costs and petition dismissed. Memorandum: Family Court erred in deciding the issue of the temporary custody of Jeremy and Jillene Lapp. Robin Lapp, the children’s mother, was awarded custody of the children in a divorce decree which also provided that all future matters relative to custody must be referred to Supreme Court. Thus, Family Court had no subject matter jurisdiction to determine custody (Family Ct Act § 115 [b]; § 447 [a]; § 467 [b]; Harrington v Harrington, 60 AD2d 982, 983). Family Court also erred in awarding Edward Welch, Jr., temporary custody of Jennifer Welch because the court failed to hold a full best interests hearing (Obey v Degling, 37 NY2d 768, 769-770; Biagi v Biagi, 124 AD2d 770, 771; Bellinger v Bellinger, 109 AD2d 1104; Matter of Blake v Blake, 106 AD2d 916). (Appeal from order of Seneca County Family Court, Dugan, J. — temporary custody.) Present — Denman, J. P., Boomer, Green, Lawton and Davis, JJ.