Joshua XX. v. Stefania YY.

Calendar Date: June 7, 2023

Miller Zeiderman LLP, White Plains (Adrienne Abraham of counsel), for appellant.

Law Office of Cappy Weiner, Kingston (Cappy Weiner of counsel), for respondent.

Betty J. Potenza, Milton, attorney for the child.

Before: Lynch, J.P., Clark, Pritzker, Reynolds Fitzgerald and Fisher, JJ.

Lynch, J.P.

Appeal from an order of the Family Court of Ulster County (E. Danielle Jose-Decker, J.), entered June 7, 2022, 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/visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarried parents of a child (born in 2016). In 2017 and 2018, the parties filed a series of custody and family offense petitions against one another, which were litigated at a fact-finding hearing spanning the course of 14 days between July 2018 and June 2019. In a November 2019 decision, Family Court (Mizel, J.) found, as relevant here, that the father had committed the family offense of harassment in the second degree and/or criminal obstruction of breathing during an altercation between the parties in November 2017. ^[1] The court also awarded the mother sole legal and physical custody of the child, but found that the father's involvement with the child "should be maximized" and awarded him substantial parenting time. The court also awarded the mother final decision-making authority over education and medical decisions after advisement and consultation with the father, and directed the parties to refrain from disparaging one another in the child's presence. In awarding sole custody to the mother, the court recognized that a psychologist who completed a mental health evaluation of the parties expressed concern that the mother would alienate the child from the father if granted such relief, but had "a greater concern [about the father's violent] behavior toward [the mother]." This custody determination was memorialized into a written order entered in January 2020 (hereinafter the prior custody order).

In March 2020, the father filed the first of several modification petitions seeking sole legal and physical custody of the child. The petitions alleged, among other things, that the mother had "exposed [the child] to hazardous environments" with respect to the COVID-19 pandemic and was not providing the father with information about which of her residences the child was residing at while in her care. The father filed another modification petition in January 2021 in which he alleged, among other things, that the mother had "communicated to [the child] that [the father] was dangerous" and was not allowing him to have parenting time as required by the prior order.

Following fact-finding and Lincoln hearings, Family Court (Jose-Decker, J.), as relevant here, awarded sole legal and physical custody to the father, with parenting time to the mother "on the [second, third, and fourth] weeks of the month" from Sunday evening until Wednesday morning. The court also awarded the father final decision-making authority over the child's "education, medical, dental and psychological care and all other matters concerning the child's general welfare" after consultation with and advisement from the mother. ^[2] In support of transferring custody to the father, Family Court found, among other things, that the mother had used her award of custody as a "sword" to diminish the child's relationship with the father, had "repeatedly changed [the child's] dental providers and therapists," had exhibited questionable judgment with respect to her actions during the height of the COVID-19 pandemic, and was not fostering the child's relationship with the father. The court was also concerned about testimony that the mother was encouraging the child to call her domestic partner (hereinafter the boyfriend) "daddy," or, at the very least, was not taking steps to address this issue in the event the child was...