Mother Did Not Stipulate to Order of Reference; Therefore Referee Only Had Power to Hear and Report

The Second Department determined mother did not stipulate to the order of reference (referring the custody and visitation proceeding to a referee) in the manner required by CPLR 2104.  Therefore, although the order of reference authorized the referee to “hear and determine the parties’ rights to custody … and visitation…,” absent the parties’ consent to the reference, the referee only had the power to hear and report.

…[T]he mother did not consent to the reference merely by participating in the proceeding without expressing her desire to have the matter tried before a judge… .

Accordingly, the Court Attorney Referee had no jurisdiction to determine, but only to hear and report, with respect to the parties’ respective petition and cross petition regarding custody and visitation…. Thus, the Court Attorney Referee’s decision … must be deemed a report (see CPLR 4320[b]), and the matter must be remitted for further proceedings pursuant to CPLR 4403 before a judge of the Family Court.  Matter of McClarin v Valera, 2013 NY Slip Op 05461, 2nd Dept 7-24-13