Matter of Suzanne QQ. v. Ben RR. , 27 N.Y.S.3d 899 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: April 7, 2016 521111
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In the Matter of SUZANNE QQ.,
Respondent,
v MEMORANDUM AND ORDER
BEN RR.,
Appellant.
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Calendar Date: February 17, 2016
Before: McCarthy, J.P., Egan Jr., Rose and Lynch, JJ.
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Ben RR., Shady, appellant pro se.
Deborah Schneer, Kingston, for respondent.
Valerie Lyn Wacks, Olivebridge, attorney for the child.
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Rose, J.
Appeal from an order of the Family Court of Ulster County
(McGinty, J.), entered January 22, 2015, which, in a proceeding
pursuant to Family Ct Act article 6, granted petitioner's motion
for, among other things, a temporary order of protection against
respondent.
Petitioner (hereinafter the mother) and respondent
(hereinafter the father) are the unwed parents of a child (born
in 2003). The mother has been the child's primary caretaker
since 2010, when the parties ended their relationship. In 2013,
after the father allegedly engaged in a variety of inappropriate
behavior toward and conversations with the child resulting in the
issuance of a temporary no-contact order of protection in favor
of the child, the mother and father cross-petitioned for custody.
-2- 521111
In January 2014, Family Court issued a temporary order granting
the father visitation with the child, provided that it be
supervised by a therapist. Subsequently, the father visited the
child's school and attempted to take her into his custody,
prompting the mother to file an emergency violation petition
which sought, among other things, a new temporary order of
protection requiring the father to stay away from the child
except during therapeutic visitation. Family Court issued the
requested temporary order of protection, and the father now
appeals from that order.
The temporary order of protection at issue here is a
nonfinal order, as it was made pending further proceedings in the
parties' underlying custody dispute. As such, the order is not
appealable as of right (see Family Ct Act § 1112 [a]; Matter of
Crooks v Smith, 260 AD2d 804, 804 [1999]; Firestone v Firestone,
44 AD2d 671, 672 [1974]). Inasmuch as petitioner did not seek
permission to appeal, the matter is not properly before us (see
Matter of Zimmer v Peno, 194 AD2d 928, 929 [1993], lv dismissed
82 NY2d 802 [1993]). Furthermore, in light of the procedural
posture of this case and the temporary nature of the order, we
decline to treat petitioner's notice of appeal as a request for
permission to appeal (see Matter of Crooks v Smith, 260 AD2d at
804-805; Matter of Bridges v Hertica, 234 AD2d 862, 864 [1996]).
McCarthy, J.P., Egan Jr. and Lynch, JJ., concur.
ORDERED that the appeal is dismissed, without costs.
ENTER:
Robert D. Mayberger
Clerk of the Court