IN RE: Crystal Lynn MOORE

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Supreme Court, Appellate Division, Fourth Department, New York.

IN RE: Crystal Lynn MOORE, Petitioner–Respondent, v. Michael W. KAZACOS, Respondent–Appellant.

Decided: November 18, 2011

PRESENT:  SCUDDER, P.J., CARNI, LINDLEY, SCONIERS, AND GREEN, JJ. Frank H. HiscockLegal Aid Society, Syracuse (Piotr Banasiak of Counsel), for Respondent–Appellant. James E. Corl, Jr., Attorney for the Child, Cicero, for Kaiden M.M.

 In this child custody proceeding, respondent father appeals from an order granting the petition of the mother seeking sole custody of the parties' infant son.   We reject the father's contention that the Referee erred in failing to consider the factors set forth in Matter of Tropea v. Tropea, 87 N.Y.2d 727, 740–741, 642 N.Y.S.2d 575, 665 N.E.2d 145 before awarding custody to the mother, who moved from Syracuse to North Carolina shortly after she commenced this proceeding.   Inasmuch “[a]s this is an initial custody determination, it is not necessary to adhere to a strict application of the relevant factors to be considered in a potential relocation as enunciated in Matter of Tropea v. Tropea ” (Matter of Lynch v. Gillogly, 82 A.D.3d 1529, 1530, 920 N.Y.S.2d 437;  see Matter of Baker v. Spurgeon, 85 A.D.3d 1494, 1496, 927 N.Y.S.2d 399, lv. dismissed 17 N.Y.3d 897, 2011 WL 5041677 [Oct. 25, 2011];  Matter of Schneider v. Lascher, 72 A.D.3d 1417, 899 N.Y.S.2d 479, lv. denied 15 N.Y.3d 708, 2010 WL 3632596).

 In addition, although the Referee should have made an explicit finding that awarding custody to the mother was in the child's best interests, the record is “sufficiently complete” for this Court to make its own findings (Matter of Ammann v. Ammann, 209 A.D.2d 1032, 1032–1033, 619 N.Y.S.2d 469), and we conclude that the Referee's custody award is in the child's best interests.   We note that there is no dispute that, as of the hearing date, the father had never seen the child, and the father did not avail himself of opportunities to visit the child during the pendency of the proceeding.   Indeed, the father failed to appear at his own house for a scheduled home visit with the Attorney for the Child, who sought to arrange visits for him with the child.   Finally, we reject the father's contention that the case should be remitted for the Referee to fashion a more specific visitation schedule.   If the father is unable to obtain “open and reasonable parenting time ․ as the parties may agree” pursuant to the order, he may file a petition seeking to enforce or modify the order.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

MEMORANDUM: