Summary
The New York Supreme Court, Appellate Division, First Department dismissed as moot an appeal from a temporary custody and visitation order. The court held that the temporary order was not an appealable order of disposition under Family Court Act § 1112(a), had expired and been superseded, and presented no nonfrivolous appellate issues; it also granted assigned appellate counsel's application to withdraw.
Topics
Practice areas
Questions Presented
- Whether the temporary custody and visitation order was appealable as of right under Family Court Act § 1112(a).
- Whether the appeal should be dismissed as moot because the temporary order had expired and been superseded by unappealed subsequent orders.
- Whether assigned appellate counsel should be permitted to withdraw under Anders v. California.
Holdings
- A temporary order of visitation is not an order of disposition within the meaning of Family Court Act § 1112(a) and therefore is not appealable as of right.
- The appeal was moot because the temporary order had expired and been superseded by subsequent custody and visitation orders that were not appealed.
- Assigned appellate counsel's application to withdraw was granted because the record disclosed no nonfrivolous issues that could be raised on appeal.
Key quotations
“The temporary order of visitation is not an order of disposition within the meaning of Family Court Act § 1112 (a) and thus is not appealable as of right” ([*1])
“Furthermore, the appeal is moot as the temporary order has already expired and been superseded by subsequent orders of custody and visitation, none of which were appealed” ([*1])
Factual background
The challenged order temporarily awarded physical custody of the subject children to the respondent mother and provided the petitioner father with visitation. That temporary order expired and was superseded by subsequent custody and visitation orders. The later orders were not appealed.
Procedural history
Supreme Court, Bronx County, entered an order on or about August 19, 2024, temporarily awarding physical custody of the children to the respondent mother and providing the petitioner father with visitation. During the appeal, the temporary order expired and was superseded by later custody and visitation orders, none of which were appealed. The Appellate Division granted assigned appellate counsel's application to withdraw and dismissed the appeal as moot.