IN RE: Michael MEADOWCROFT

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

IN RE: Michael MEADOWCROFT, respondent, v. Wendy WOODS, appellant.

Decided: July 31, 2007

HOWARD MILLER, J.P., WILLIAM F. MASTRO, GABRIEL M. KRAUSMAN, and EDWARD D. CARNI, JJ. Andrew John Calcagno, Staten Island, N.Y., for appellant. Anthony J. Morisano, Staten Island, N.Y., Law Guardian for the children.

In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limited by her brief, from so much of an order of the Family Court, Richmond County (Cohen-Gallet, Ct. Atty. Ref.), dated February 15, 2006, as, upon denying the father's custody petition, directed that she move the children back to any location within 35 miles of her former residence on Staten Island.

ORDERED that the order is reversed insofar as appealed from, on the law and the facts, without costs or disbursements, and the provision directing the appellant to move the children back to any location within 35 miles of her former residence on Staten Island is vacated.

In the absence of a petition seeking a modification of a prior order of custody or visitation or alleging a violation of a prior order of custody or visitation, the Family Court was without jurisdiction to direct the appellant to move the children back to any location within 35 miles of her former residence on Staten Island (see Matter of Harriet v. Alex LL., 292 A.D.2d 92, 740 N.Y.S.2d 162;  Matter of Massaro v. English, 262 A.D.2d 879, 692 N.Y.S.2d 506).

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