Colin M. v. Panna B.

211 A.D.3d 732

179 N.Y.S.3d 726

In the Matter of COLIN M. (Anonymous), petitioner-respondent,

v.PANNA B. (Anonymous), respondent-respondent;

Sivani J. M. (Anonymous), nonparty-appellant.

2021–04200

Docket No. V–3659–20/20A

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

Argued—October 25, 2022

December 7, 2022

Francine H. Moss, Ronkonkoma, NY, attorney for the child, the nonparty-appellant.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, LINDA CHRISTOPHER, BARRY E. WARHIT, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the subject child appeals, by permission, from an order of the Family Court, Suffolk County (James W. Malone, J.), dated May 21, 2021. The order temporarily transferred residential custody of the parties’ child to the father during the pendency of the proceeding.

ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Suffolk County, for an expedited hearing, and a final determination on the issue of custody after a full hearing, in accordance herewith; and it is further,

ORDERED that pending a full hearing and final determination on the issue of custody, residential custody of the child shall remain with the mother.

The parties are the parents of the subject child, who was born in December 2009. In connection with their divorce in or around 2012, the parties agreed that they would share joint legal custody of the child, that the mother would have residential custody, and that the father would have certain parental access.

On or about March 9, 2020, the father commenced this proceeding to modify a prior order of custody of the Supreme Court, Suffolk County, so as to award him sole custody of the parties’ child. During the pendency of the proceeding, by order dated May 21, 2021, the Family Court temporarily transferred residential custody of the child to the father until further order of the court. The child appeals. We reverse.

" ‘The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child’ " ( Matter of Rosado v. Rosado, 136 A.D.3d 927, 928, 25 N.Y.S.3d 323, quoting Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Here, new developments have arisen since the order appealed from was issued, which have been brought to this Court's attention by the attorney for the child, including updates provided during oral argument. These new developments include ongoing allegations that the father abused the child and the child's continued residence with the mother. As the Court of Appeals has recognized, changed circumstances may have particular significance in child custody matters and may render a...