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Matter of Tina X. v John X.


In the Matter of TINA X., Appellant,
v
JOHN X., Respondent. (And Two Other Related Proceedings.)


Supreme Court of New York:

Appellate Division, Third Department


NY Slip Op 08876


Decided and Entered: December 3, 2015



Tina X v John X (3rd Dept. 2015)

NY Slip Op 08876


Before: Peters, P.J., Lahtinen, Rose and Clark, JJ.

John J. Raspante, Utica, for appellant.


Scott T. Bielicki, Sherrill, attorney for the children.




Peters, P.J.


MEMORANDUM AND ORDER


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 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.




The case of Young v. Young is provided as part of a free educational service by J. Douglas Barics, attorney at law, for reference only. Cases such as Young may be overruled by subsequent decisions, different judicial departments may have different controlling case law, and the level of the court deciding each case will determine whether it is controlling law or not. Young v. Young is presented here to help illustrate how the law works in general, but for specific legal matters, an attorney should be consulted.


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