Matter of Tina X. v. John X. ( 2015 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: December 3, 2015 516946
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In the Matter of TINA X.,
Appellant,
v MEMORANDUM AND ORDER
JOHN X.,
Respondent.
(And Two Other Related Proceedings.)
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Calendar Date: October 20, 2015
Before: Peters, P.J., Lahtinen, Rose and Clark, JJ.
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John J. Raspante, Utica, for appellant.
Scott T. Bielicki, Sherrill, attorney for the children.
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Peters, P.J.
Appeal from an order of the Family Court of Madison County
(McDermott, J.), entered May 17, 2013, which, in three
proceedings pursuant to Family Ct Act article 6, partially
granted respondent's motion for immediate custody of the parties'
children.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the parents of three children (born
in 1997, 2000 and 2007). Pursuant to a June 2007 stipulated
order, the parties shared joint legal custody of the children,
with the mother having primary physical custody and the father
receiving parenting time. In 2012, the mother commenced
proceedings seeking to enforce and modify the visitation
provisions of that order, and the father petitioned for sole
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legal and primary physical custody of the children. Upon the
father's application for an immediate transfer of custody, Family
Court issued a temporary order awarding him sole legal and
primary physical custody of the children. The mother now
appeals.
The temporary order granting the father custody of the
children pending a final disposition was not a final order and,
as such, it is not appealable as of right (see Family Ct Act §
1112 [a]; Matter of Rosario WW. v Ellen WW., 309 AD2d 984, 985
[2003]; Matter of Crooks v Smith, 260 AD2d 804, 804 [1999];
Matter of Bridges v Hertica, 234 AD2d 862, 864 [1996]). No
application for leave to appeal has been made and, in light of
the fact that a final order of custody has been entered that
supersedes the temporary order at issue (see Matter of
Loukopoulos v Loukopoulos, 68 AD3d 1470, 1471 [2009]; Matter of
Rosario WW. v Ellen WW., 309 AD2d at 985), we decline to treat
the notice of appeal as a request for permission to appeal.
Lahtinen, Rose and Clark, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court