Joseph XX. v. Jah-Rai YY.

206 N.Y.3d 408

In the Matter of JOSEPH XX., Appellant-Respondent,

v.JAH-RAI YY., Respondent-Appellant.

(And Six Other Related Proceedings.)

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

Calendar Date: December 13, 2023

Decided and Entered: February 22, 2024

Ellen Bennett Becker, Albany, for appellant-respondent.

Amanda FiggsGanter, Albany, for respondent-appellant.

Karen R. Crandall, Schenectady, attorney for the child.

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

Reynolds Fitzgerald, J.

Cross-appeals from an order of the Family Court of Albany County (Susan M. Kushner, J.), entered May 12, 2022, which, among other things, partially 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 a child (bom in 2018). Pursuant to a July 2020 order entered on consent, the parties shared joint legal custody and equal parenting time, with designated sharing of Christmas, New Year’s, Mother’s and Father’s Day and Thanksgiving Day holidays and the child’s birthday. The remaining single-day holidays were to be equally shared, as mutually agreed upon.¹ In August 2020, the father com- menced the first of these proceedings by filing two violation petitions alleging that the mother failed to bring the child to his scheduled parenting time and that she would not agree to equally sharing the single-day holidays. The father also filed a modification petition seeking a specified sharing of the single-day holidays. Thereafter, the mother filed three violation petitions alleging that the father brought the child to a public beach during the COVID-19 pandemic without informing her and brought the child to his religious services. The mother also filed a modification petition seeking final decision-making authority when the parties are unable to agree and the addition of a provision prohibiting the father from introducing the child to any religion until the child is 13 years old.

After a combined fact-finding hearing, Family Court, in a May 2022 order, dismissed all of the mother’s violation petitions and the father’s violation petition alleging that the mother failed to agree to single-day holidays. The court did find, however, that the mother willfully violated the 2020 order by refusing the father’s parenting time.² Further, Family Court found a change in circumstances and, after considering the best interests of the child, as relevant to this appeal, continued joint legal custody, but also directed the parties to attend and participate in coparenting counseling to. address the issues of religion, good faith cooperation on joint legal questions and ways to coparent more effectively, and prohibited the parties from allowing the child to attend religious services or instruction until an agreement is reached. It further ordered that in the event that an agreement regarding the child’s religion was not reached after the parties had engaged in a minimum of 20 coparenting sessions, said failure would constitute a change in circumstances allowing either party to petition the court for modification of the order. The father and the mother cross-appeal.

[1–4] "The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawfill court order in effect with a clear and unequivocal mandate, that the person who allegedly violated the order had actual knowledge of the order’s terms, that the alleged violator’s actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful" (Matter of Timothy RR. v. Peggy SS., 206 A.D.3d 1123, 1124, 170 N.Y.S.3d 256 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Aaron K. v. Laurie K., 187 A.D.3d 1423, 1424, 134 N.Y.S.3d 560 [3d Dept. 2020]). "This Court will accord deference to Family Court’s credibility findings, and the determination of whether to hold a party in contempt will generally not be disturbed absent an abuse of discretion" (Matter of Clint Y. v. Holly X., 217 A.D.3d 1069, 1070, 190 N.Y.S.3d 210 [3d Dept. 2023] [internal quotation marks and citations omitted]; see Matter of Craig K. v. Michelle. K., 218 A.D.3d 977, 978, 193 N.Y.S.3d 408 [3d Dept. 2023]). With respect to the parties’ petitions to modify the 2020 order, a parent "must first show that a change in circumstances has occurred since the entry of the existing custody order that then warrants an inquiry into what custodial arrangement is in the best interests of the child. Only after this threshold hurdle has been met will the court conduct a best interests analysis" (Matter of Nicole B. v. Franklin A., 210 A,D.3d 1351, 1353, 178 N.Y.S.3d 286 [3d Dept. 2022] [internal quotation marks and citations omitted], lv dismissed 39 N.Y.3d 1092, 186 N.Y.S.3d 604, 207 N.E.3d 570 [2023]; see Matter of Antonio MM. v. Tara NN., 191 A.D.3d 1196, 1197, 142 N.Y.S.3d 237 [3d Dept. 2021]). "Family Court’s credibility assessments and factual findings will not be disturbed as long as they have a sound and substantial basis in the record" (Matter of Nelson UU, v. Carmen VV., 202 A.D.3d 1414, 1415, 164 N.Y.S.3d 285 [3d Dept. 2022] [internal quotation marks and citations omitted]; see Matter of Erick RR. v. Victoria SS., 206 A.D.3d 1523, 1525, 170 N.Y.S.3d 708 [3d Dept. 2022]).

[5] The mother contends that Family Court abused its discretion in finding that she willfully violated the 2020 order. At the fact-finding hearing, both parties testified and the mother submitted documentary proof. The mother also proffered the testimony of two private investigators and the maternal grandmother. The mother concedes that she withheld the child from the father in August 2020 but did so out of concern about COVID-19, and only after the father advised her that he intended to travel out of state with the child. The record confirms this. Under these circumstances, we would not characterize the violation as willful. That said, Family Court appropriately determined that the father was entitled to make-up time (see Matter of David JJ. v. Verna–Lee KK., 207 A.D.3d 841, 844, 170 N.Y.S.3d 742 [3d Dept. 2022]; Matter of Nelson UU. v. Carmen VV., 202 A.D.3d at 1416, 164 N.Y.S.3d 285).³

[6] The mother also contends that Family Court abused its discretion in dismissing her violation petitions. As the proponent of the violation petitions, the mother was obliged to establish that there was a lawful court order in effect with a clear and unequivocal mandate. Here, the 2020 order does not contain a prohibition restricting the father from taking the child to religious services or to a public beach, nor does it contain any COVID-19 restrictions. Although the mother implies that joint, legal custody gives her an equal right in determining whether the child should be taken to a public beach during COVID-19 or to religious services, and that the father’s actions violated the order’s mandate of joint legal custody, the order does not contain a clear and unequivocal mandate restricting the father from partaking in such activities, As such, we find that Family Court properly dismissed the mother’s violation petitions (see Matter of Clint Y. v. Holly X., 217 A.D.3d at 1071, 190 N.Y.S.3d 210; Matter of Sandra R. v. Matthew R., 189 A.D.3d 1995, 2000, 137 N.Y.S.3d 824 [3d Dept. 2020], lv dismissed & denied 36 N.Y.3d 1077, 142 N.Y.S.3d 875, 166 N.E.3d 1053 [2021]).

[7] Turning to Family Court’s determination to modify the 2020 order, contrary to the father’s contention, the court did not base its finding that there had been a change in circumstances solely on the parties’ failure to agree as to the religious upbringing of the child. Rather, Family Court found a change in circumstances based on the parties’ inability to reasonably function as joint custodians for a myriad of reasons, citing specifically to each parent making unilateral choices without consulting or obtaining the approval of the other parent, their failure to respect one another and unwillingness to compromise at all on their individual views as to religion and the child, their indifference to each other’s concerns with the child’s health issues and their inability to agree on sharing parenting time for the single-day, holidays or the child’s birthday, leading to continuous disputes, disagreements and police involvement. Given the foregoing, we agree that Family Court properly found a change in circumstances was established, as the parties’ ongoing conflict resulted in the parents’ inability to effectively communicate and cooperatively work together (see Matter of Alexis WW. v. Adam XX., 220 A.D.3d 1094, 1096, 198 N.Y.S.3d 427 [3d Dept. 2023]; Matter of Virginia OO. v. Alan PP., 214 A.D.3d 1045, 1047, 184 N.Y.S.3d 230 [3d Dept. 2023]).

[8, 9] The father also contends that Family Court erred in directing the parties to attend coparenting counseling and in prohibiting either parent from permitting the child to attend religious services or instruction until an agreement is reached. The mother asserts that Family Court erred in not granting her final decision-making authority. It is well settled that a court may direct a party to engage in coparenting counseling, or other treatment, as a component of a court’s custody order (see Matter of Thompson v. Wood, 156 A.D.3d 1279, 1285, 68 N.Y.S.3d 199 [3d Dept. 2017]; Matter of Remillard v. Luck, 2 A.D.3d 1179, 1180, 768 N.Y.S.2d 714 [3d Dept. 2003]; Matter of Mongiardo. v. Mongiardo, 232 A.D.2d 741, 743, 649 N.Y.S.2d 45 [3d Dept. 1996]; Matter of Dennison v. Short, 229 A.D.2d 676, 677, 645 N.Y.S.2d 170 [3d Dept. 1996]). Here, Family Court did not alter the parties’ shared custodial arrangement and continued joint legal custody while simultaneously directing the parties to participate in coparenting counseling to assist the parties in coparenting more...