Amendola v. Maglione

189 A.D.3d 1030

133 N.Y.S.3d 866 (Mem)

In the Matter of Toniann M. AMENDOLA, appellant,

v.Richard J. MAGLIONE, respondent.

2019–12025

2019–12033

2019–12034

2019–12037

2019–12038

Docket Nos. V–1868–10/18P–T

Supreme Court, Appellate Division, Second Department, New York.

Submitted—November 5, 2020

December 9, 2020

Hani M. Moskowitz, Garden City, NY, for appellant.

James P. Curran, Hebron, NY, for respondent.

Roberta Fox, Sea Cliff, NY, attorney for the child.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from five orders of the Family Court, Nassau County (Eileen C. Daly–Sapraicone, J.), all dated September 30, 2019. The first and second orders, insofar as appealed from, after a hearing, upon granting the mother's petitions alleging that the father violated a prior order of custody and parental access dated July 21, 2017, failed to impose a sanction against him. The third order, insofar as appealed from, after a hearing, denied that branch of the mother's petition which was to modify the order of custody and parental access dated July 21, 2017, so as to award her sole legal and physical custody of the parties' child. The fourth order, after a hearing, denied, as academic, the mother's separate petition to modify the order of custody and parental access dated July 21, 2017. The fifth order, after a hearing, dismissed the mother's petition alleging that the father violated the order of custody and parental access dated July 21, 2017.

ORDERED that the first, second, and third orders dated September 30, 2019, are affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the fourth and fifth orders dated September 30, 2019, are affirmed, without costs or disbursements.

The parties are the parents of a child born in March 2008. The parties separated in 2009, and the child has resided with the father since 2014. In an order dated July 21, 2017 (hereinafter the July 2017 order), the Family Court, inter alia, awarded the father sole legal and physical custody of the child, permitted the father to relocate with the child from New York to Massachusetts, and awarded parental access to the mother, who continued to reside in Long Island.

Thereafter, the mother filed petitions alleging that the father violated the July 2017 order and seeking to modify that order so as to award her sole legal and physical custody of the child. In five orders, all dated September 30, 2019, made after a fact-finding hearing, the Family Court, inter alia, granted certain violation petitions filed by the mother, without imposing a sanction on the father, and determined that the mother was not entitled to modification of the July 2017 order so as to award her sole legal and physical custody of the child. The mother appeals.

" ‘Modification of an existing court-sanctioned custody or [parental access] arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child’ " ( Matter of Miller v. Thompson, 184 A.D.3d 643, 644, 126 N.Y.S.3d 138, quoting Matter of O'Shea v. Parker, 116 A.D.3d 1051, 1051, 983 N.Y.S.2d 903 ). The best interests of the child must be determined by a review...