IN RE: BRIAN S. FONTAINE

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

IN RE: BRIAN S. FONTAINE, PETITIONER–APPELLANT, v. MARY K. FONTAINE, RESPONDENT–RESPONDENT.

CAF 11–02558

Decided: April 20, 2012

PRESENT:  SCUDDER, P.J., FAHEY, LINDLEY, AND MARTOCHE, JJ. D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR PETITIONER–APPELLANT. BRUCE R. BRYAN, SYRACUSE, FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

KAREN J. DOCTER, ATTORNEY FOR THE CHILDREN, FAYETTEVILLE, FOR GABRIELA F. AND ANNA F.

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Family Court, Onondaga County, for further proceedings in accordance with the following Memorandum:  On appeal from an order directing, inter alia, that petitioner father's visitation with the parties' children shall continue to be supervised, the father contends that the Court Attorney Referee erred “in failing to set forth those facts essential to [her] decision” (Matter of Bradbury v. Monaghan, 77 AD3d 1424, 1424 [internal quotation marks omitted] ).   We agree.   We note at the outset that, according to the order of the Court Attorney Referee, the parties stipulated that the Court Attorney Referee (hereafter, court) would hear and determine the petition.  “Effective appellate review ․ requires [, however], 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., 6 N.Y.2d 1024, 1026).  “Inasmuch as ‘the record is not sufficient to enable this Court to make the requisite findings of fact,’ “ we reverse the order and remit the matter to Family Court for a new hearing on the petition (Bradbury, 77 AD3d at 1425), including a new in camera hearing with the children (see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270).

In light of our determination, we must address only one of the father's remaining contentions, i.e., that the court improperly allowed the Attorney for the Children to approve visitation supervisors.   We reject that contention (see Matter of Kruty v. Manell, 248 A.D.2d 809, 811;  see also Matter of Vieira v. Huff, 83 AD3d 1520, 1521).   In doing so, we note that the court did not improperly delegate the determination of an issue involving the best interests of the children, “i.e., whether [unsupervised] visitation should resume and, if so, when” (Matter of Hameed v. Alatawaneh, 19 AD3d 1135, 1136;  cf.  Matter of Battista v. Battista, 294 A.D.2d 941;  Wills v. Wills, 283 A.D.2d 1023, 1024).

Frances E. Cafarell

Clerk of the Court