Burke v. Squires

202 A.D.3d 784

162 N.Y.S.3d 434

In the Matter of Joy BURKE, respondent,

v.Darryl SQUIRES, appellant.

(Proceeding No. 1)

In the Matter of Darryl Squires, appellant,

v.Joy Burke, respondent.

(Proceeding No. 2)

2020–08095 , 2020–08096

Docket Nos. V–5162–11/18Q/18S/19T, V–6358–11/18R/18T/19U

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

Submitted—December 20, 2021

February 9, 2022

Susan A. DeNatale, Bayport, NY, for appellant.

Darla A. Filiberto, Islandia, NY, for respondent.

Ronna L. DeLoe, Larchmont, NY, attorney for the child.

BETSY BARROS, J.P., CHERYL E. CHAMBERS, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from (1) a decision of the Family Court, Suffolk County (Paul M. Hensley, J.), dated October 15, 2020, and (2) an order of the same court, also dated October 15, 2020. The order, insofar as appealed from, after a hearing, in effect, denied the father's petition to modify a so-ordered stipulation dated June 27, 2016, so as to award him sole custody of the parties’ child.

ORDERED that the appeal from the decision is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp., 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

The parties are the unmarried parents of one child, born in 2011. Prior custody proceedings resulted in a so-ordered stipulation of settlement dated June 27, 2016 (hereinafter the stipulation), awarding the parties joint legal custody, with primary physical custody to the mother and certain parental access to the father. The stipulation provided, inter alia, that, if any party consistently violated the stipulation by denying access to the child, that action would be deemed a change in circumstances and the injured party could petition the Family Court for a change of custody.

In January 2018, the father filed a petition to modify the stipulation so as to award him sole custody of the child, based upon the mother's alleged violations of the stipulation in failing to comply with his parental access. The mother thereafter filed a petition seeking to modify the stipulation so as to award her sole custody of the child and to eliminate the father's weekday parental access. A hearing was held on both petitions. In an order dated October 15, 2020, the Family Court, inter alia, in effect, denied the father's petition. The father appeals.

Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child (see Baraz v. Polyakov, 198 A.D.3d 853, 854, 156 N.Y.S.3d 298 ; Sukul v. Sukul, 196 A.D.3d 661, 662, 151 N.Y.S.3d 684 ). "The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" ( Matter of Cabano v. Petrella, 169 A.D.3d 901, 902, 94 N.Y.S.3d 376 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Baraz v. Polyakov, 198 A.D.3d at 854, 156 N.Y.S.3d 298 ). "Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings in this regard" ( R.K. v. R.G., 169 A.D.3d 892, 894, 94 N.Y.S.3d 622 ), and "[t]he court's findings will not be disturbed unless they lack a sound and substantial basis in the record" ( id. at 894, 94 N.Y.S.3d 622 ; see Eschbach v. Eschbach, 56 N.Y.2d at 173–174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Sukul v. Sukul, 196 A.D.3d at 662, 151 N.Y.S.3d 684 ).

Here, the mother's admitted violations of the stipulation of settlement in failing to comply with the provisions concerning the father's parental access established a sufficient change in circumstances to permit the father to seek sole custody under the terms of the stipulation (see Matter of Epstein v. Soler–Epstein, 188 A.D.3d 1052, 1053, 135 N.Y.S.3d 445 ). However, the father failed to establish that such a change of custody would be in the best interests of the child.

"Parental alienation of a child from the other parent, including willful interference with his or her [parental access] rights, is ‘an act so inconsistent with the best interests of the children as to, per se, raise a strong probability that the [offending party] is unfit to act as custodial parent’ " ( E.V. v. R.V., 165 A.D.3d 736, 737, 85 N.Y.S.3d 84, quoting Entwistle v. Entwistle, 61 A.D.2d 380, 384–385, 402 N.Y.S.2d 213 ; see Pandis v. Lapas, 176 A.D.3d 837, 839, 111 N.Y.S.3d 667 )....