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In the Matter of Cindy M. Phelps and Augustus T. Phelps, Petitioners-Respondents v. Eugene Dexter Hunter

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department


December 21, 2012

IN THE MATTER OF CINDY M. PHELPS AND AUGUSTUS T. PHELPS, PETITIONERS-RESPONDENTS,
v.
EUGENE DEXTER HUNTER, RESPONDENT-APPELLANT.

Appeal from an order of the Family Court, Onondaga County (Salvatore Pavone, R.), entered October 7, 2011 in a proceeding pursuant to Family Court Act article 6. The order, among other things, awarded sole legal and physical custody of the subject child to petitioners.

Matter of Phelps v Hunter

Released on December 21, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Respondent father appeals from an order granting the non-parent petitioners sole legal and physical custody of the father's minor child. We affirm for reasons stated in the amended findings of fact and decision at Family Court. We add only that there is no merit to the father's contention that the Court Attorney Referee lacked jurisdiction to hear and determine the matter (see generally CPLR 4317 [a]). The father signed the requisite consent and, although he signed that consent before being informed of his right to counsel pursuant to Family Court Act § 262 (a), he and his attorney willingly participated in the subsequent proceedings without objection and with the full knowledge that the Court Attorney Referee would adjudicate the merits of the petition (see Matter of Carlos G. [Bernadette M.], 96 AD3d 632, 633; 1199 Hous. Corp. v Jimco Restoration Corp., 77 AD3d 502, 502; Dodge v Lynch, 55 AD3d 314, 315, lv denied 11 NY3d 713; cf. Matter of Gale v Gale, 87 AD3d 1011, 1012; Matter of Osmundson v Held-Cummings, 306 AD2d 950, 950-951). Entered: December 21, 2012 Frances E. Cafarell Clerk of the Court

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