Gallup v. O'Connor

— Order unanimously affirmed without costs. Memorandum: On appeal from an order awarding custody of respondent’s three-year-old daughter, who was born out of wedlock, to petitioner, the child’s father, respondent argues that Family Court abused its discretion by excusing the law guardian, appointed by the court pursuant to Family Court Act § 249 (a), on the second day of the two-day custody trial (see, Matter of Evans v Evans, 127 AD2d 998, 999). In finding that respondent was unfit, the court went far beyond the standard necessary for an award of custody between parents. That standard, the best interest of the child, clearly was met by the evidence in this case (see generally, Eschbach v Eschbach, 56 NY2d 167, 171-174). Although we conclude that Family Court erred in excusing the law guardian and continuing the trial in his absence, on this record we find that such error does not require reversal. (Appeal from Order of Onondaga County Family Court, McLaughlin, J.— Custody.) Present — Callahan, J. P., Doerr, Green, Pine and Lowery, JJ.