In the Matter of Cheri Bearfield, Appellant, v. Ralph A. Peluse et al., Respondents

In the Matter of Cheri Bearfield, Appellant, v Ralph A. Peluse et al., Respondents. [816 NYS2d 396] [MAJORITY] The case is held, the motion to relieve counsel of assignment is granted and new counsel is to be assigned. Memorandum: Family Court dismissed a petition for modification of an order of custody and visitation filed by the subject child’s mother, based upon the failure to demonstrate a change of circumstances. Mother’s assigned [MAJORITY] counsel on appeal has moved to be relieved of the assignment and has submitted a brief in which he concludes that there are no nonfrivolous issues meriting this Court’s consideration (see Matter of Jordan S., 179 AD2d 1091 [1992]). The record establishes that by order entered July 19, 2005, without a hearing, the child’s paternal grandfather was granted custody, with supervised visitation to mother and father. By dismissing mother’s modification petition, Family Court continued custody with grandfather. The motion submissions raise the question whether the court erred in dismissing mother’s petition without a hearing and without having made findings as to the issues of extraordinary circumstances and the best interests of the child. Therefore, we relieve counsel of his assignment and assign new counsel to brief this issue, as well as any other issues that counsel’s review of the record may disclose. (Appeal from order of Family Court, Cattaraugus County, Paul B. Kelly, J.H.O.— Custody.) Present—Pigott, Jr., PJ., Hurlbutt, Scudder, Green and Hayes, JJ.