IN RE: Shannon D. WILDER (2008)

Petitioner mother appeals from an order of Family Court that adopted the report of a Judicial Hearing Officer (JHO) recommending dismissal of the mother's petition seeking to modify an existing custody order.   We agree with the mother that the court erred in adopting the report of the JHO without providing her with notice of the filing of the report or an opportunity to object to it (see 22 NYCRR 202.44[a];  Jones v. Jones, 30 A.D.3d 741, 742, 817 N.Y.S.2d 177;  see also Sidoti v. Degliuomini, 10 A.D.3d 396, 780 N.Y.S.2d 498).   Contrary to the contention of respondent father, the mother did not explicitly or implicitly consent to the referral of the matter to the JHO for a final determination and, indeed, the JHO did not issue a final determination on the mother's petition.   The JHO explicitly acknowledged that the matter had been referred to him to hear and report, and he concluded his report with only a recommendation.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the petition is reinstated and the matter is remitted to Family Court, Cattaraugus County, for compliance with 22 NYCRR 202.44.

MEMORANDUM: