Graffagnino v. Esposito

204 N.Y.S.3d 172

223 A.D.3d 805

In the Matter of Nicola GRAFFAGNINO, respondent,

v.Danielle ESPOSITO, appellant. (Proceeding Nos. 1, 2, and 3)

In the Matter of Danielle Esposito, appellant,

v.Nicola Graffagnino, respondent. (Proceeding No. 4)

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

Argued—December 11, 2023

January 24, 2024

Francine Scotto, Staten Island, NY, for appellant.

Nicola Graffagnino, Staten Island, NY, respondent pro se.

Brian S. O’Halloran, Staten Island, NY, attorney for the child.

MARK C. DILLON, J.P., ROBERT J. MILLER, BARRY E. WARHIT, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from stated portions of an order of the Family Court, Richmond County (Peter Fuller De Lizzo, J.), dated July 8, 2021. The order, inter alia, after a hearing, (1) modified an order of the same court dated January 6, 2016, among other things, so as to award the father increased parental access, set forth a new parental access schedule during holidays and school vacations, and require the mother to provide the father with two weeks of notice before any nonemergent medical appointments, and (2), in effect, granted the father’s petitions alleging that the mother violated the order dated January 6, 2016.

ORDERED that the order dated July 8, 2021, is affirmed insofar as appealed from, with costs.

The parties are the parents of a child born in September 2013. In an order dated January 6, 2016, issued upon the consent of the parties, the Family Court awarded joint legal custody of the child to the parties, with residential custody to the mother and parental access to the father. The court also required each parent to notify the other of any nonemergent medical appointments at least 24 hours in advance. In February 2017, the mother filed a petition to modify the January 2016 order so as to reduce the father’s parental access in order to provide her with more time with the child. The following month, the father filed a petition to modify the January 2016 order so as to award him residential custody of the child, with parental access to the mother, and a separate petition alleging that the mother violated the January 2016 order. In June 2017, the mother filed an amended petition to modify the January 2016 order, seeking, inter alia, not only to reduce the father’s parental access, but also to award her sole legal custody of the child. In November 2017, the father filed a second petition alleging that the mother violated the January 2016 order.

Between 2018 and 2020, the Family Court conducted a hearing on the petitions. While the hearing was ongoing, the parties stipulated that a change in circumstances had occurred, warranting modification of the January 2016 order. In an order dated July 8, 2021, the court, inter alia, granted that branch of the mother’s amended petition which was to modify the January 2016 order so as to award her sole legal custody of the child, and denied the father’s petition to modify the January 2016 order so as to award him residential custody of the child. The court, in effect, denied that branch of the mother’s amended petition which was to modify the January 2016 order so as to reduce the father’s parental access and, instead, increased his parental access while setting forth a new schedule for parental access during holidays and school vacations. The court also directed the mother to provide the father with two weeks of notice before any nonemergent medical appointments. Further, the court determined that the mother violated the January 2016 order. The mother appeals from stated portions of the order dated July 8, 2021.

[1–4] "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 Gayle v. Muir, 211 A.D.3d 942, 943, 179 N.Y.S.3d 780 [internal quotation marks omitted]; see Baraz v. Polyakov, 198 A.D.3d 853, 854, 156 N.Y.S.3d 298). "The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" (Matter of Cabano v. Petrella, 169 A.D.3d 901, 902, 94 N.Y.S.3d 376). Moreover, "[t]he best interests of [a] child[ ] generally lie with a healthy, meaningful relationship with both parents" (Matter of Tina RR. v. Dennis RR., 143 A.D.3d 1195, 1197, 41 N.Y.S.3d 555; see Matter of Sanders v. Ballek, 136 A.D.3d 676, 677–678, 24 N.Y.S.3d 219). "Since the Family Court’s determination with respect to custody and visitation depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, deference is accorded to its findings in this regard, and such...