Gayle v. Muir

211 A.D.3d 942

179 N.Y.S.3d 780

In the Matter of Steffan P. GAYLE, respondent,

v.Anita L. MUIR, appellant.

(Proceeding No. 1)

In the Matter of Anita Muir, appellant,

v.Steffan Gayle, respondent.

(Proceeding No. 2)

2021-08057

Docket Nos. V-8879-19/19B/19D

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

Argued—November 28, 2022

December 21, 2022

Jan Murphy, Huntington, NY, for appellant.

Kenneth M. Tuccillo, Hastings–on–Hudson, NY, for respondent.

Amy L. Colvin, Huntington, NY, attorney for the child.

MARK C. DILLON, J.P., JOSEPH A. ZAYAS, DEBORAH A. DOWLING, LILLIAN WAN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Ayesha K. Brantley, J.), dated October 21, 2021. The order, insofar as appealed from, after a hearing, granted that branch of the father's amended petition which was to modify a so-ordered stipulation of custody dated February 15, 2019, so as to award the father residential custody of the parties’ child, and denied the mother's amended petition, in effect, to modify the so-ordered stipulation of custody so as to allow her to relocate with the child to Pennsylvania.

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

The parties were married in March 2013, and their child was born in June 2013. In a so-ordered stipulation of custody dated February 15, 2019 (hereinafter the custody stipulation), the parties were awarded joint legal custody of the child, with the father to have final decision-making authority, inter alia, over issues concerning education. The custody stipulation further awarded residential custody of the child to the mother, with overnight parental access to the father every Wednesday and alternating weekends from Friday after school until Monday morning. In an amended decision after trial and order dated April 29, 2019, the Supreme Court, among other things, denied the mother's motion for permission to relocate with the child from Valley Stream in Nassau County to Pennsylvania.

The parents were divorced by a judgment of divorce dated June 20, 2019, which incorporated but did not merge the custody stipulation. Immediately thereafter, the mother relocated to Pennsylvania with the child, and, in September 2019, enrolled the child in a school in Pennsylvania without the father's consent.

In January 2020, the father filed an amended petition to modify the custody stipulation so as to award him sole legal and residential custody of the child, with parental access to the mother, and the mother filed an amended petition, in effect, to modify the custody stipulation so as to allow her to relocate with the child to Pennsylvania. Between March 2020 and August 2021, the Family Court conducted a hearing on the amended petitions, including an in camera interview with the child. In an order dated October 21, 2021, the court, inter alia, granted that branch of the father's amended petition which was to modify the custody stipulation so as to award him residential custody of the child, and denied the mother's amended petition. The mother 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" ( Matter of Tedesco v. Mazzara, 206 A.D.3d 917, 918, 171 N.Y.S.3d 539 [internal quotation marks omitted]; see Matter of Picitelli v. Carbone, 208 A.D.3d 582, 583, 172 N.Y.S.3d 714 ). "A party seeking a change in ... custody is not automatically entitled to a hearing, but must make an evidentiary showing sufficient to warrant a hearing" ( Matter of Werner v. Mazzenga, 174 A.D.3d 727, 728–729, 107 N.Y.S.3d 425 [internal quotation marks omitted]). Here, where both parties’ amended petitions alleged that the mother's relocation to Pennsylvania rendered certain provisions of the custody stipulation unfeasible, the Family Court properly conducted a hearing to determine the best interests of the child (see Gentile v. Gentile, 149 A.D.3d 916, 918, 52 N.Y.S.3d 420 ; Nusbaum v. Nusbaum, 106 A.D.3d 791, 793, 964 N.Y.S.2d 628 ).

In determining whether to modify a court-approved stipulation setting forth the terms of custody and parental access, "[t]he paramount concern ... is the best interests of the child under the totality of the circumstances" ( Matter of Tedesco v. Mazzara, 206 A.D.3d at 919, 171 N.Y.S.3d 539 [internal quotation marks omitted]; see Eschbach v. Eschbach, 56...