Connell-Charleus v. Charleus

192 A.D.3d 890

140 N.Y.S.3d 752 (Mem)

In the Matter of Chantel CONNELL–CHARLEUS, respondent,

v.Jean Rene CHARLEUS, appellant.

(Proceeding No. 1)

In the Matter of Jean Rene Charleus, appellant,

v.Chantel Connell–Charleus, respondent.

(Proceeding No. 2)

2019–14521

Docket Nos. V–19433–17/17A, V–19433–17/17B

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

Submitted—February 23, 2021

March 17, 2021

Kyle Sosebee, Brooklyn, NY, for appellant.

Joel Borenstein, Brooklyn, NY, for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Nesta N. Johnson and Janet Neustaetter of counsel), attorney for the child.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, BETSY BARROS, PAUL WOOTEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Lisa Aschkenasy, Ct. Atty. Ref.), dated December 6, 2019. The order, insofar as appealed from, after a hearing, granted the mother's petition to modify the parties’ judgment of divorce so as to award her sole legal and physical custody of the parties’ child and specified parental access to the father.

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

The mother and the father were married in 2010, and their child was born in 2015. The parties were divorced by a judgment issued by a Florida court in December 2016. At that time, the mother lived in Brooklyn and the father lived in Toronto. The judgment of divorce incorporated but did not merge a settlement agreement and parenting plan entered into by the parties. The parenting plan provided that the parties would have joint custody of the child and the father would have overnight parental access from Thursday to Sunday every other week, as well as on vacations. The parenting plan also required that the parties participate in coparenting counseling for 18 months.

In July 2017, the mother registered the Florida judgment of divorce in New York and filed a petition to modify the judgment of divorce so as to award her sole legal and physical custody of the child and specified parental access to the father. After a hearing, the Family Court granted the mother's petition, and the father appeals.

"A party seeking modification of an existing custody arrangement must show the existence of such a change in circumstances that modification is required to ensure the continued best interests of the child" ( Matter of Sidorowicz v. Sidorowicz, 101 A.D.3d 737, 738, 955 N.Y.S.2d 194 ; see Matter of Fargasch v. Alves, 116 A.D.3d 774, 983 N.Y.S.2d 607 ). While joint custody is encouraged "as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" ( Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ), joint custody is inappropriate where parents have evidenced an inability to cooperate on matters concerning the child (see Matter of Schweizer v. Jablesnik, 95 A.D.3d 1341, 944 N.Y.S.2d 891 ; Matter of Edwards v. Rothschild, 60 A.D.3d 675, 677, 875 N.Y.S.2d 155 ). "A change from joint legal custody to sole custody by one parent is warranted where ‘the parties’ relationship is so acrimonious that it effectively precludes joint decision-making’ " ( Matter of Schweizer v. Jablesnik, 95 A.D.3d at 1342, 944 N.Y.S.2d 891, quoting Matter of Picado v. Doan, 90 A.D.3d 932, 933, 934 N.Y.S.2d 495 ). Moreover, inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses’ credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record (see Matter of Shisgal v. Abels, 179 A.D.3d 1070, 118 N.Y.S.3d 631 ; Matter of Ruiz v. Carie, 179 A.D.3d 1069, 114 N.Y.S.3d 709 ; Matter of Pritchard v. Coelho, 177 A.D.3d 887, 115 N.Y.S.3d 37 ).

Here, the parties’ relationship was strained when they entered into the parenting plan, and it subsequently deteriorated to the point that the mother petitioned for and secured an order of protection against the father. The parties do not communicate other than by text, do not engage in joint decision-making with respect to the child, and have not engaged in the counseling that was specified in the judgment of divorce (see Matter of Zall v. Theiss, 144 A.D.3d 831, 40 N.Y.S.3d 555 ). Joint custody is inappropriate where, as here, the parties are antagonistic toward each other, do not communicate at all, and have demonstrated an inability to cooperate on matters concerning the child (see Matter of Florio v. Niven, 123 A.D.3d 708, 710, 997 N.Y.S.2d 728 ; Matter of Lawrence v. Davidson, 109 A.D.3d 826, 826, 971 N.Y.S.2d 62 ; Matter of Wright v. Kaura, 106...