Paul v. Wallace

Order unanimously modified on the law and as modified affirmed without costs and matter remitted to Onondaga County Family Court for further *1083proceedings in accordance with the following Memorandum: Petitioner and respondent, petitioner’s mother, stipulated in Family Court that respondent would have temporary custody of petitioner’s daughter and that petitioner would have weekly supervised visitation until she demonstrated that she had satisfied certain conditions concerning her substance abuse. The stipulation was embodied in an order entered April 6, 1994. The order also directed that neither party make negative comments about the other in the child’s presence.

In October 1994 petitioner sought to regain custody of her daughter, alleging in her petition that she had complied with the terms of the April 1994 order. In a second petition, filed in November 1994, petitioner alleged that respondent had violated that order by making negative comments about petitioner and limiting her visitation.

Family Court properly dismissed the second petition. The proof at trial failed to substantiate the allegations of that petition.

With respect to the October 1994 petition, however, the court erred in finding that extraordinary circumstances warranted continued custody with respondent, based entirely upon the April 1994 stipulation. That stipulation, by itself, does not constitute extraordinary circumstances (see, Matter of Michael G. B. v Angela L. B., 219 AD2d 289 [decided herewith]; Matter of Canabush v Wancewicz, 193 AD2d 260, 263). Because the record is insufficient for us to determine whether extraordinary circumstances exist (cf., Matter of Michael B. v Angela B., supra), we modify the order by vacating the first and second adjudicatory paragraphs, and we remit the matter to Onondaga County Family Court for a hearing to determine that issue. (Appeal from Order of Onondaga County Family Court, Auser, J.—Custody.) Present—Denman, P. J., Lawton, Wesley, Balio and Boehm, JJ.’