Gold v. Khalifa

2024 NY Slip Op 00306

In the Matter of Karina Gold, respondent, v. Yasser Khalifa, appellant. (Proceeding No. 1.)

In the Matter of Yasser Khalifa, appellant, v. Karina Gold, respondent. (Proceeding No. 2.)

Nos. 2022-02550, 2022-02551, Docket Nos. V-11196-15/15A, V-13503-15/15A

Supreme Court of New York, Second Department

January 24, 2024

Yasser Khalifa, Bronx, NY, appellant pro se.

Brad M. Nacht, Brooklyn, NY, for respondent.

Liberty Aldrich, Brooklyn, NY (Louise Feld and Janet Neustaetter of counsel), attorney for the child.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, PAUL WOOTEN DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6 the father appeals from (1) an order of the Family Court, Kings County (Judith D. Waksberg, J.), dated March 8, 2022, and (2) an order of the same court dated March 9, 2022. The order dated March 8, 2022, insofar as appealed from, after a hearing, granted that branch of the mother's amended petition which was to modify the custody and parental access provisions of the parties' judgment of divorce so as to award her sole legal and residential custody of the parties' child, in effect, denied those branches of the father's petition which were to modify the custody and parental access provisions of the judgment of divorce so as to award him primary residential custody of the child and final educational decision-making authority, and set forth a schedule of parental access for the father. The order dated March 9, 2022, insofar as appealed from, awarded the same relief.

ORDERED that the orders are affirmed insofar as appealed from, without costs or disbursements.

The parties have one child together, born in 2007. Pursuant to a judgment of divorce dated September 30, 2013, the parties agreed to share joint custody of the child with primary residential custody to the mother and liberal parental access to the father. In May 2015, the mother filed a petition to modify the custody and parental access provisions of the judgment of divorce so as to award her sole custody of the child, and the father filed a petition, inter alia, to modify the custody and parental access provisions of the judgment of divorce so as to award him primary residential custody of the child and final educational decision-making authority. In October 2019, the mother filed an amended petition to modify the custody and parental access provisions of the judgment of divorce so as to award her sole custody of the child with supervised parental access to the father. After a hearing, the Family Court, among other things, granted that branch of the mother's amended petition which was to modify the custody and parental access provisions of the judgment of divorce so as to award her sole legal and residential custody of the child, in effect, denied those branches of the father's petition which were to modify the custody and parental access provisions of the judgment of divorce so as to award him primary residential custody of the child and final educational decision-making authority, and set forth a schedule of parental access for the father. 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 Connell-Charleus v Charleus, 192 A.D.3d 890, 890 quoting Matter of Sidorowicz v Sidorowicz, 101 A.D.3d 737, 738). "[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" (Matter of Robinson v Mustakas, 214 A.D.3d 880, 880 [internal quotation marks omitted]; see Matter of Shields v Shields, 192 A.D.3d 691). Accordingly, "[e]vidence of a hostile relationship between the mother and the father indicating that joint decision-making is untenable is a change of circumstances" (Matter of Pierce v Caputo, 214 A.D.3d 877, 878-879). "The Family Court is in the best position to evaluate the credibility of the witnesses and its determination should not be disturbed unless it lacks a sound and substantial basis in the record" (id. at 879; see ...