IN RE: GREGORY BRADBURY (2010)

MEMORANDUM AND ORDER

DARLENE O'KANE, ATTORNEY FOR THE CHILDREN, SYRACUSE, FOR ELVIS M.-B. AND LELAND M.-B.

It is hereby ORDERED that the amended order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Onondaga County, for a hearing in accordance with the following Memorandum:  In appeal No. 1, petitioner father appeals from an amended order that, following a hearing, awarded the parties joint custody, with primary physical custody of the children to respondent mother and visitation to the father.   We agree with the father that “Family Court erred in failing ‘to set forth those facts essential to its decision’ “ (Matter of Williams v. Tucker, 2 AD3d 1366, 1367, lv denied 2 NY3d 705).  “Effective appellate review, whatever the case but especially in child ․ custody ․ proceedings, requires that appropriate factual findings be made by the [hearing] court----the court best able to measure the credibility of the witnesses” (Matter of Jose L. I., 46 N.Y.2d 1024, 1026;  see Matter of Austin v. Austin, 254 A.D.2d 703).   Inasmuch as “the record is not sufficient to enable this Court to make the requisite findings of fact,” the matter must be remitted to Family Court for a new hearing (Austin, 254 A.D.2d at 703-704;  see Matter of Miller v. Miller, 220 A.D.2d 133, 137).  “The focus of that hearing must be the best interests of the children” (Austin, 254 A.D.2d at 704).

In light of our determination with respect to appeal No. 1, we dismiss appeal No. 2 as moot.

Patricia L. Morgan

Clerk of the Court