Byler v. Byler, 260
| Court | New York Supreme Court Appellate Division |
| Citation | 128 N.Y.S.3d 385,185 A.D.3d 1403 |
| Docket Number | 260,CAF 18-00680 |
| Parties | In the Matter of Melinda BYLER, Petitioner-Respondent, and Kenneth Byler, Petitioner-Appellant, v. Mary BYLER, Respondent-Respondent. |
| Decision Date | 17 July 2020 |
185 A.D.3d 1403
128 N.Y.S.3d 385
In the Matter of Melinda BYLER, Petitioner-Respondent,
and
Kenneth Byler, Petitioner-Appellant,
v.
Mary BYLER, Respondent-Respondent.
260
CAF 18-00680
Supreme Court, Appellate Division, Fourth Department, New York.
July 17, 2020
LINDA M. CAMPBELL, SYRACUSE, FOR PETITIONER-APPELLANT.
PAUL B. WATKINS, FAIRPORT, FOR RESPONDENT-RESPONDENT.
JAMES SCOTT DIMMER, FREDONIA, FOR PETITIONER-RESPONDENT.
AVERY S. OLSON, JAMESTOWN, ATTORNEY FOR THE CHILDREN.
PRESENT: CARNI, J.P., LINDLEY, NEMOYER, TROUTMAN, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order insofar as appealed from is unanimously reversed in the interest of justice and on the law without costs, the petition of petitioner Kenneth Byler filed on September 5, 2017 is reinstated and the joint petitions filed by petitioners on April 27 and June 12, 2017 are reinstated with respect to petitioner Kenneth Byler, and the matter is remitted to Family Court, Chautauqua County, for further proceedings in accordance with the following memorandum: Petitioner father filed one petition individually and two petitions jointly with petitioner mother seeking to modify a prior order that awarded custody of the subject children to respondent, the children's paternal aunt (aunt). As relevant here, the father sought to modify the order by awarding custody to him. As limited by his brief, the father appeals from an order insofar as it denied that relief, thereby effectively dismissing those petitions to that extent.
The father contends that Family Court erred in failing to make an initial determination with respect to the existence of extraordinary circumstances necessary to justify an award of custody to a nonparent. As a preliminary matter, although we agree with the aunt that the father failed to preserve that contention for our...
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