Johnson v. McWilliams

212 A.D.3d 620

179 N.Y.S.3d 622 (Mem)

In the Matter of Colleen JOHNSON, respondent,

v.Derrick MCWILLIAMS, appellant.

2022–01847

Docket No. V-51-21/21A

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

Submitted—December 9, 2022

January 11, 2023

Salvatore C. Adamo, New York, NY, for appellant.

Gary E. Eisenberg, New City, NY, for respondent.

Donna E. Abrams, White Plains, NY, attorney for the child.

ANGELA G. IANNACCI, J.P., ROBERT J. MILLER, DEBORAH A. DOWLING, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Putnam County (Joseph J. Spofford, Jr., J.), dated February 14, 2022. The order, insofar as appealed from, after a hearing, granted that branch of the mother's petition which was, in effect, to modify the parental access provisions of a stipulation of settlement dated September 11, 2019, which was incorporated but not merged into the parties' judgment of divorce, so as to require the father to provide the mother with 48 hours' notice in writing of his requests for additional weekday or overnight parental access with the parties' child.

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

The parties are the parents of one child. Pursuant to a stipulation of settlement dated September 11, 2019, which was incorporated but not merged into the parties' judgment of divorce, the parties agreed to share joint legal custody of the child, with physical custody to the mother and parental access to the father every other weekend and "[s]uch other times as the [mother] and the [father] may agree." In January 2021, the mother filed a petition to modify the parental access provisions of the stipulation of settlement, inter alia, in effect, so as to require the father to provide her with 48 hours' notice in writing via email or text of his requests for additional weekday or overnight parental access with the child. After a fact-finding hearing, in an order dated February 14, 2022, the Family Court, among other things, granted that branch of the mother's petition. The father appeals.

"In order to modify an existing custody or parental access arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child" ( Matter of LaPera v. Restivo, 202 A.D.3d 788, 789, 158 N.Y.S.3d 858 ; see Matter of Soper v. Soper, 203 A.D.3d 1162, 163 N.Y.S.3d 417 ). "The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" ( Matter of Soper v. Soper, 203 A.D.3d at 1163, 163 N.Y.S.3d 417 [internal quotation marks omitted]). "The determination of appropriate parental access is entrusted to the...