IN RE: Jana IRONS

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

IN RE: Jana IRONS, respondent, v. Drew SCHNELLER, appellant.

Decided: February 22, 1999

LAWRENCE J. BRACKEN, J.P., CORNELIUS J. O'BRIEN, DANIEL W. JOY and ANITA R. FLORIO, JJ. Karen E. Gunkel, Bellport, N.Y. (Patricia H. Gould of counsel), for appellant. Robert D. Gallo, Lake Ronkonkoma, N.Y., for respondent.

In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Freundlich, J.), dated December 9, 1997, which, inter alia, (a) awarded sole custody of the parties' infant child to the petitioner mother, and (b) sua sponte granted permission to the petitioner mother to relocate to the State of Texas or “anywhere else [she] so chooses”.

ORDERED that the order is reversed, on the law and the facts, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for further proceedings consistent herewith.

 While the finding of the hearing court must be accorded great respect (see, Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260;  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 447 N.Y.S.2d 893, 432 N.E.2d 765;  Ira K. v. Frances K., 115 A.D.2d 699, 497 N.Y.S.2d 685), it cannot be allowed to stand where it lacks a sound and substantial basis in the record (Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411;  see also, Skolnick v. Skolnick, 142 A.D.2d 570, 530 N.Y.S.2d 235).   At bar, the hearing court's award of sole custody to the mother lacks a sound and substantial basis.   In addition, the record does not support the court's finding that the appellant had severe problems.

Moreover, viewed as a whole, the record shows that both the petitioner and the appellant care and love the child who is the subject of this petition.   Under the particular circumstances of this case, we find that an award of joint legal custody of the child is warranted (see generally, Eschbach v. Eschbach, supra;  Friederwitzer v. Friederwitzer, supra;  Matter of Amanda H. v. Paul Robert W., 251 A.D.2d 578, 674 N.Y.S.2d 773;  Ira K. v. Frances K., supra).   However, since the record is insufficient to permit us to make a determination as to physical custody, we must remit this matter to the Family Court to make appropriate findings and a determination in that regard, as well as to set an appropriate visitation schedule if one is required.

 We also find that it was error to grant the mother permission to relocate to Texas or anywhere else she might choose, as she never requested such relief in her petition and her attorney, in fact, represented that she did not intend to remove the child from the Suffolk County area (see generally, Matter of Nakis-Batos v. Nakis, 191 A.D.2d 443, 594 N.Y.S.2d 59;  Sipos v. Kelly, 66 A.D.2d 1022, 411 N.Y.S.2d 735, cf., Matter of Mendoza v. Adamson, 238 A.D.2d 737, 656 N.Y.S.2d 504).

MEMORANDUM BY THE COURT.

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