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In re Bay

Supreme Court of New York, First Department

January 16, 2014

In re Ana Liza Bay, Petitioner-Respondent,
v.
Pedro Solla, Respondent-Appellant.

Law Offices of Randall S. Carmel, Syosset (Randall S. Carmel of counsel), for appellant.

Karen Freedman, Lawyers For Children, Inc., New York (Shirim Nothenberg of counsel), attorney for the child.

Mazzarelli, J.P., Friedman, DeGrasse, Richter, Manzanet-Daniels, JJ.

Order, Family Court, New York County (Carol J. Goldstein, Referee), entered on or about August 30, 2012, after a fact-finding hearing, awarding custody of the parties' two children to respondent mother, unanimously affirmed, without costs.

In determining this custody matter, the court properly considered the best interests of the children (see Eschbach v Eschbach, 56 N.Y.2d 167, 171 [1982]). The court should have analyzed the matter under the standard applicable to relocation cases (see Matter of Tropea v Tropea, 87 N.Y.2d 727 [1996]), and the record shows that, even under the Tropea standard, it is in the children's best interests to remain in New Jersey with their mother.

In seeking the Referee's recusal, the children's father failed to identify "an actual ruling which demonstrates bias" (Yannitelli v Yannitelli & Sons Constr. Corp., 247 A.D.2d 271 [1st Dept 1998], lv denied 92 N.Y.2d 875 [1998]). Indeed, his claim of bias is based entirely on the Referee's failure to order, before a hearing, that the children be returned to New York.

The father cites no authority that would permit him, based on an unsubstantiated claim of bias, to revoke his consent to a referee's hearing and determining the parties' custody petitions (see CPLR 4317[a]). Nor does he offer a basis for such a revocation (see generally Matter of Carlos G. [Bernadette M.], 96 A.D.3d 632 [1st Dept 2012]).


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