Matter of Driscoll v. Oursler ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 10, 2015 520294
_____________________________________
In the Matter of CHRISTOPHER
DRISCOLL,
Respondent,
v
MEMORANDUM AND ORDER
AMBER OURSLER,
Appellant.
(And Nine Other Related Proceedings.)
_____________________________________
Calendar Date: November 20, 2015
Before: Lahtinen, J.P., McCarthy, Egan Jr., Lynch and Clark, JJ.
__________
Frank A. Sarat, Homer, for appellant.
Karen L. Howe, Cortland, for respondent.
Elizabeth Aherne, Ithaca, attorney for the child.
__________
Clark, J.
Appeal from an order of the Family Court of Cortland County
(Campbell, J.), entered October 6, 2014, which, among other
things, granted petitioner's application, in a proceeding
pursuant to Family Ct Act article 6, for custody of the parties'
child.
Petitioner (hereinafter the father) and respondent
(hereinafter the mother) are the parents of a child (born in
2007). After the parties went their separate ways in 2010, they
had an informal and unstructured arrangement where they shared
parenting time. In 2013, the father commenced the first of these
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proceedings seeking sole custody of the child. Following the
filing of nine additional proceedings, hearings were held over
several days during which numerous witnesses testified. At the
conclusion of the hearings, Family Court, among other things,
awarded sole legal and physical custody to the father and
parenting time with the mother. The mother now appeals.
The mother's appellate counsel seeks to be relieved of his
assignment on the basis that there are no nonfrivolous issues to
be raised, citing Anders v California (386 U.S. 738 [1967]). As we
have previously stated, however, "[i]t is indeed rare that an
Anders brief will reflect effective advocacy in a contested case
such as this where a trial or full evidentiary hearing has
occurred" (Matter of Taylor v Fry, 42 AD3d 680, 681 [2007];
accord Matter of Reynolds v VanDusen, 128 AD3d 1294, 1295
[2015]). Our review of the record and the mother's pro se brief
reveals at least one potentially nonfrivolous issue to be raised,
whether it was proper for Family Court to award sole custody of
the child to the father. Accordingly, without expressing any
opinion as to the ultimate merits, counsel's request is granted
and new appellate counsel will be assigned to address this issue
and any other nonfrivolous issues that the record may disclose
(see Matter of Reynolds v VanDusen, 128 AD3d at 1295; Matter of
Marchand v Nazzaro, 48 AD3d 1007, 1007 [2008]).
Lahtinen, J.P., McCarthy, Egan Jr. and Lynch, JJ., concur.
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ORDERED that the decision is withheld, application to be
relieved of assignment granted and new counsel to be assigned.
ENTER:
Robert D. Mayberger
Clerk of the Court