Joseph II. v. Brandy JJ.

210 A.D.3d 1315

179 N.Y.S.3d 382

In the Matter of JOSEPH II., Respondent,

v.BRANDY JJ., Appellant.

(And Another Related Proceeding.)

532509

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

Calendar Date: October 18, 2022

Decided and Entered: November 23, 2022

Timothy S. Brennan, Albany, for appellant.

Alexandra G. Verrigni, Rexford, for respondent.

Trinidad M. Martin, Glens Falls, attorney for the child.

Before: Garry, P.J., Lynch, Reynolds Fitzgerald, Ceresia and McShan, JJ.

MEMORANDUM AND ORDER

Garry, P.J. Appeal from an order of the Family Court of Washington County (Adam D. Michelini, J.), entered October 23, 2020, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of the subject child (born in December 2014). In April 2015, the mother took the child from New York to California to visit family, and, after some time there, she elected to stay. The father petitioned for custody of the child thereafter, and, following some uncertainty as to whether the mother would return to New York,¹ Family Court issued a June 2016 order, on consent, pursuant to which the parents were to share legal and physical custody, with the child to spend half the year (April 7 to October 7) residing with the father in New York and half the year (October 7 to April 7) residing with the mother in California. The order further provided that, if by June 2020 the parties had not decided where the child would attend kindergarten, then either party could petition the court for modification.

The father exercised his parenting time following entry of the foregoing order, and the child was exchanged pursuant thereto in October 2016. In February 2017, the father, along with his child from another prior relationship, moved to California in an attempt to reconcile with the mother, and the parties lived together there for approximately six months until they again separated. The father remained in California thereafter to complete an educational program, and, during that period, the parties operated under a two-day, rotating parenting time schedule. In January 2019, the father completed his program and returned to New York, and the parties agreed to resume the court-ordered custody arrangement.

Prior to the next custodial exchange, set to take place in April 2020, the father informed the mother that he would be unable to travel to California to retrieve the child for financial reasons. He was able to procure tickets in June 2020 and informed the mother that he would be traveling to pick up the child. The mother then obtained a restraining order against the father from a California court, alleging that he had physically abused her while the parties were in New York, that she had fled to California for her safety, that the father later made certain threats to her life and that she feared that he would return and hurt her or the child. The restraining order was vacated following a court appearance in California, and the father returned to New York with the child in July 2020.

Upon his return, the father commenced the first of the subject modification proceedings, seeking primary physical custody of the child and alleging that the parties were unable to come to an agreement as to where the child would attend school. The mother moved to dismiss his petition for lack of jurisdiction, arguing that California is the child's home state. Family Court denied that motion, and the mother then answered and cross-petitioned for primary physical custody. Following a fact-finding hearing, Family Court granted the father primary physical custody, with the mother having open and liberal parenting time in New York, an extended period in California during the summer and certain rotating holidays. The mother appeals.

As a threshold matter, the mother maintains that Family Court lacked jurisdiction to decide the father's custody petition.² Where, as here, a court of this state has made a child custody determination, it has "exclusive, continuing jurisdiction over the determination until ... a court of this state determines that neither the child, [nor] the child and one parent, ... have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships" ( Domestic Relations Law § 76–a [1][a] ) or "a court of this state or a court of another state determines that the child [and] the child's parents ... do not presently reside in this state" ( Domestic Relations Law § 76–a [1][b] ).

Initially, the parties agree that no California court has rendered any determination relevant to the residence of the child. Although the father moved to California for a period of time, he presently resides in the Town of Granville, Washington County, where he was born and raised and where his family and the child's paternal half sibling live (see Matter of Seminara v. Seminara, 111 A.D.3d 949, 950–951, 976 N.Y.S.2d 121 [2nd Dept. 2013] ; Matter of Mercado v. Frye, 104 A.D.3d 1340, 1341, 961 N.Y.S.2d 717 [4th Dept. 2013], lv denied 21 N.Y.3d 859, 2013 WL 3198162 [2013] ). Following the father's return to New York, the child's visitation with the father occurred here under the terms of the June 2016 order (see Matter of Hissam v. Mancini, 80 A.D.3d 802, 803, 916 N.Y.S.2d 248 [3d Dept. 2011], lv dismissed and denied 16 N.Y.3d 870, 923 N.Y.S.2d 406, 947 N.E.2d 1184 [2011] ; Matter of Sutton v. Sutton, 74 A.D.3d 1838, 1839, 902 N.Y.S.2d 746 [4th Dept. 2010] ). Although certain evidence concerning the child's care, protection, training and personal relationships may be in California given the split-year, bicoastal nature of the prior custody arrangement, the same is true of New York (see Matter of Helmeyer v. Setzer, 173 A.D.3d 740, 743, 105 N.Y.S.3d 541 [2d Dept. 2019] ; Matter of Belcher v. Lawrence, 98 A.D.3d 197, 201, 948 N.Y.S.2d 187 [3d Dept. 2012] ). Any relevant testimony from those in California was able to be, and indeed was, presented "by telephone, audiovisual means, or other electronic means" ( Domestic Relations Law § 75–j [2] ). Additionally, evidence regarding what custodial arrangement would serve the child's best interests is present in New York given that Family Court possessed pertinent information regarding the parties’ circumstances prior to the June 2016 consent order (see Matter of Belcher v. Lawrence, 98 A.D.3d at 201, 948 N.Y.S.2d 187 ). Similarly, the attorney for the child who had been assigned in the prior proceedings was reengaged for the subject proceedings. We therefore agree with Family Court's conclusion that the child and the father continue to have a significant connection to New York and that substantial evidence relevant to this custody matter exists in this state.

The mother now also argues that New York is an inconvenient forum (see Domestic Relations Law § 76–f ). Even liberally construing her motion, and the oral argument thereon, we cannot conclude that the mother raised this discrete argument (cf. Matter of Alger v. Jacobs, 169 A.D.3d 1415, 1417, 93 N.Y.S.3d 492 [4th Dept. 2019] ; see also Boulter v. Boulter, 147 A.D.3d 1512, 1512, 46 N.Y.S.3d 471 [4th Dept. 2017] ; compare Matter of Eldad LL. v. Dannai MM., 155 A.D.3d 1336, 1338, 65 N.Y.S.3d 284 [3d Dept. 2017] ), and Family Court cannot be said to have passed upon it (compare Matter of Jamilah DD. v. Edwin EE., 152 A.D.3d 998, 1000, 59 N.Y.S.3d 193 [3d Dept. 2017] ).³ We therefore do not address this unpreserved claim but to say that we would, in any event, find it unpersuasive.

As the June 2016 order expressly permitted either party to commence a custody modification proceeding upon their failure to come to an agreement about where the child would attend kindergarten, no showing of a change in circumstances was needed (see Matter of Erick RR. v. Victoria SS., 206 A.D.3d 1523, 1524, 170 N.Y.S.3d 708 [3d Dept. 2022] ). The sole issue for Family Court was what custody arrangement would serve the best interests of the child, which involved consideration of factors such as each parent's past parenting performance and ability to provide for the child's physical, emotional and intellectual well-being, the quality of their home environments, whether the parent will foster a relationship between the child and the other parent and the degree to which each parent has complied with the existing custodial arrangement (see Matter of Charity K. v. Sultani L., 202 A.D.3d 1346, 1347, 164 N.Y.S.3d 250 [3d Dept. 2022] ). Given that "Family Court was in a superior position to observe and assess witness testimony and demeanor during the fact-finding hearing, its credibility assessments and factual findings are accorded great deference, and its custodial determination will not be disturbed so long as it is supported by a sound and substantial basis in the record" ( Matter of Cecelia BB. v. Frank CC., 200 A.D.3d 1411, 1414, 161 N.Y.S.3d 366 [3d Dept. 2021] ).

The evidence from the fact-finding hearing reveals that the father lives in a house owned by his grandmother (hereinafter the great grandmother), together with the great grandmother and the child's paternal half sibling. It appears that he will ultimately inherit this home. He is employed full time as a heating, ventilation and air conditioning technician, and the great grandmother provides certain before and after school care to the child. The father's mother (hereinafter the grandmother) also lives nearby and is available to care for the child when needed. The mother resides in Yucca Valley,...