Cox v. Cruz

176 A.D.3d 1200

109 N.Y.S.3d 676 (Mem)

In the Matter of Latoya COX, Petitioner-Respondent,

v.Mayra E. CRUZ, et al., Respondents-Respondents;

Gianna F. (Anonymous), Nonparty-Appellant.

2018–12305

Docket No. V–32585–05/17C

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

Argued - October 3, 2019

October 30, 2019

Karen P. Simmons, Brooklyn, N.Y. (Eva D. Stein and Janet Neustaetter of counsel), attorney for the child, the nonparty-appellant.

Linda C. Braunsberg, Staten Island, NY, for petitioner-respondent.

Mayra E. Cruz, Brooklyn, NY, respondent-respondent pro se.

Janis A. Parazzelli, Floral Park, NY, for respondent-respondent Javier Figueroa.

REINALDO E. RIVERA, J.P., RUTH C. BALKIN, SHERI S. ROMAN, BETSY BARROS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Art article 6, the child appeals from an order of the Family Court, Kings County (Nisha Menon, Ct. Atty. Ref.), dated September 10, 2018. The order, after a hearing, in effect, denied the mother's petition to modify a prior order of the same court (Emily M. Olshansky, J.), dated January 13, 2006, so as to award her sole custody of the child and to permit the child to relocate with her to North Carolina.

ORDERED that the order dated September 10, 2018, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the mother's petition to modify the order dated January 13, 2006, so as to award her sole custody of the child and to permit the child to relocate with her to North Carolina is granted, and the matter is remitted to the Family Court, Kings County, for the determination of a visitation schedule for the child with the paternal great-aunt and the father.

In an order dated January 13, 2006 (hereinafter the prior order), the paternal great-aunt was awarded legal and physical custody of the subject child, upon the default of the father and the mother. The mother commenced this proceeding to modify the prior order so as to award her sole custody of the child and to permit the child to relocate with her to North Carolina. The paternal great-aunt and the father opposed the mother's petition. After a hearing, the Family Court, in effect, denied the mother's petition. The child appeals.

An existing order of custody may be modified only on a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests of the child (see Matter of Paese v. Paese, 175 A.D.3d 502, 504, 108 N.Y.S.3d 458 ; Matter of Werner v. Mazzenga, 174 A.D.3d 727, 107 N.Y.S.3d 425 ; Matter of Vann v. Ballinger, 174 A.D.3d 725, 102 N.Y.S.3d 483 ; Matter of Newton v. McFarlane, 174 A.D.3d 67, 103 N.Y.S.3d 445 ). The best interests of the child must be determined by a review of the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ).

"[T]his Court's authority in custody and visitation matters is as broad as that of the hearing court, and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we would be seriously remiss if, simply in deference to the finding of a Trial Judge, we allowed a custody determination to stand where it lacks a sound and substantial basis in the record" ( Weisberger v. Weisberger, 154 A.D.3d 41, 51, 60 N.Y.S.3d 265 [internal quotation marks omitted] ).

Her...