Cook v. Sierra

190 A.D.3d 732

135 N.Y.S.3d 868 (Mem)

In the Matter of Ashleigh COOK, respondent,

v.Benjamin SIERRA, Jr., appellant. (Proceeding No. 1)

In the Matter of Benjamin Sierra, Jr., appellant,

v.Ashleigh Cook, respondent. (Proceeding No. 2)

2019–13271

Docket Nos. V–06530–13/19A, V–06530–13/19B, V–06530–13/19C

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

Argued—December 10, 2020

January 13, 2021

Law Offices of Louis J. Maione, P.C., New York, NY, for appellant.

Meth Law Offices, P.C., Chester, NY (Michael D. Meth of counsel), for respondent.

George E. Reed, Jr., White Plains, NY, attorney for the child.

WILLIAM F. MASTRO, A.P.J., REINALDO E. RIVERA, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Dutchess County (Tracy C. MacKenzie, J.), dated September 10, 2019. The order, after a hearing, modified a prior order of custody and parental access of the same court dated January 31, 2014, so as to award the father parental access with the parties' child every other weekend.

ORDERED that the order dated September 10, 2019, is affirmed, without costs or disbursements.

The parties are the parents of a child, born in 2011. Pursuant to an order of custody and parental access dated January 31, 2014 (hereinafter the 2014 order), the parties were awarded joint legal custody of the child, with primary physical custody to the mother and parental access to the father "as the parties can agree." For a number of years thereafter, the parties arranged for the father to have parental access every weekend. In 2019, both parties filed petitions seeking to modify the 2014 order. At a hearing, the mother made an oral application, in effect, to modify the 2014 order so as to set an alternating weekend schedule of parental access, citing the child's enrollment in school, the mother's new work schedule, and the parties' inability to agree on parental access times as reasons for a modification. In an order dated September 10, 2019, the Family Court, inter alia, set an alternating weekend parental access schedule. The father appeals.

Contrary to the father's contention, he was not deprived of the effective assistance of counsel. "[T]he statutory right to counsel under Family Court Act § 262 affords protections equivalent to the constitutional standard of effective assistance of counsel afforded to defendants in criminal proceedings" ( Matter of Adam M.M. [Sophia M.], 179 A.D.3d 801, 802, 117 N.Y.S.3d 100 [internal quotation marks omitted] ). "An attorney representing a client is entitled to make ‘strategic and tactical decisions concerning the conduct of trials’ " ( Matter of Deanna E.R. [Latisha M.], 169 A.D.3d 691, 692, 93 N.Y.S.3d 375 ). "Accordingly, ‘what constitutes effective assistance is not and cannot be fixed with precision, but varies according to the particular circumstances of each case’ " ( Matter of Adam M.M. [Sophia M.], 179 A.D.3d at 802, 117 N.Y.S.3d 100, quoting People v. Rivera, 71 N.Y.2d 705, 708, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). "To prevail on a claim of ineffective assistance of counsel, it is incumbent on the [appellant] to ‘demonstrate the absence of strategic or other legitimate explanations’ for counsel's alleged shortcomings" ( Matter of Adam M.M. [Sophia M.], 179 A.D.3d at 802, 117 N.Y.S.3d 100, quoting People v. Rivera, 71 N.Y.2d at 709, 530 N.Y.S.2d 52, 525 N.E.2d 698 ). Here, the father failed to establish the absence of strategic or other legitimate explanations for his counsel's alleged shortcomings (see Matter of William O. v. John A., 151 A.D.3d 1203, 1205, 55 N.Y.S.3d 822 ; Matter of Pfalzer v. Pfalzer, 150 A.D.3d 1705, 1706, 54 N.Y.S.3d 817 ).

Moreover, to modify an existing custody and parental access order, there must be a showing of a...