Luke v. Erskine

222 A.D.3d 868

199 N.Y.S.3d 707 (Mem)

In the Matter of Brian A. LUKE, Jr., appellant,

v.Sukkia ERSKINE, respondent.

2022–06717

Docket Nos. V-12179-17/21C, V-16412-17/21C,V-21673-17/21C

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

Submitted—November 20, 2023

December 20, 2023

Steven P. Forbes, Huntington, NY, for appellant.

Cheryl Charles–Duval, Brooklyn, NY, for respondent.

Allan D. Shafter, Port Washington, NY, attorney for the child.

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, LARA J. GENOVESI, LOURDES M. VENTURA, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Lauren Norton Lerner, Ct. Atty. Ref.), dated July 18, 2022. The order, insofar as appealed from, after a hearing, in effect, denied the father's petition to modify an order of the same court (Wanda Wardlaw Matthews, Ct. Atty. Ref.) dated July 20, 2018, so as to award him sole legal and residential custody of the parties’ child.

ORDERED that the order dated July 18, 2022, is reversed insofar as appealed from, on the law and in the exercise of discretion, without costs or disbursements, the father's petition is reinstated, and the matter is remitted to the Family Court, Queens County, for a new hearing on the father's petition, before a different Court Attorney Referee, to be conducted with all deliberate speed, and a new determination thereafter; and it is further,

ORDERED that pending the new hearing and determination of the father's petition, the mother shall continue to have residential custody of the parties’ child, and the parental access schedule set forth in the order dated July 18, 2022, shall continue.

The mother and the father have one child together, born in 2014. In August 2017, the father filed a petition for parental access with the child. In an order dated July 20, 2018 (hereinafter the July 2018 order), the Family Court awarded the parties joint legal custody of the child, with residential custody to the mother and parental access to the father. The July 2018 order is unclear as to whether it was entered upon the mother's default or with her consent. In any event, according to the father, the mother moved from Queens to New Jersey with the child in or about February 2021. That same month, following a dispute between the parties, the mother refused to produce the child for parental access with the father.

In April 2021, the father filed a petition to modify the July 2018 order so as to award him sole legal and residential custody of the child. On October 14, 2021, the mother and the father appeared virtually before the Family Court, and the court issued a temporary order of parental access, reiterating the terms of the July 2018 order, albeit with one change to the father's parental access schedule. According to the father, the mother thereafter generally complied with the temporary order of parental access and produced the child for parental access with him until another dispute between the parties arose in December 2021, at which point the mother again failed to produce the child.

A hearing was scheduled on the father's petition to be held on February 1, 2022. However, the mother failed to appear thereat, and, as a result, the Family Court directed the parties to appear for an inquest on May 3, 2022. On that date, the court conducted the inquest as scheduled, and the mother again failed to appear. The mother's attorney indicated, among other things, that she had recently spoken with the mother and had no "explanation as to [the mother's] absence." The attorney for the child indicated that he had last communicated with the child approximately one month earlier, stating, with regard to the child's wishes and current circumstances, only that she "wasn't that verbal about a position [but] she seemed happy with the current arrangement." The court then heard testimony from the father, the only witness to testify at the inquest. On the same date as the inquest, the court issued an order directing the Administration for Children's Services (hereinafter ACS) to conduct an investigation into this matter and a warrant for the mother's arrest. On May 25, 2022, ACS produced a report, noting, inter alia, that it was unable to locate the mother or interview the child. The record contains no indication regarding what, if anything, occurred in response to the issuance of the warrant.

In an order dated July 18, 2022, the Family Court, in effect, denied the father's petition to modify the July 2018 order so as to award him sole legal and residential custody of the child, while also setting forth a new parental access schedule. The court concluded that a change in circumstances existed to warrant modification of the July 2018 order, but that it did not "believe" that the child's best interests would be served by a change in custody because "the attorney for the child ha[d] not had an opportunity to interview the subject child and the [c]ourt [wa]s [therefore] unaware of ... the subject child's position." 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 ). "The required change in circumstances may be found to exist," among other circumstances, "where the parties’ relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the children" ( Matter of Liang v. O'Brien, 216 A.D.3d 1101, 1101, 189 N.Y.S.3d 287 ). In any event, "[t]he 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 ). When deciding whether a modification is in a child's best interests, "[f]actors to be considered include the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Smith v. Francis, 206 A.D.3d 914, 915–916, 170 N.Y.S.3d 195 [internal quotation marks omitted]). "Stability and continuity in a child's life are important factors" ( Matter of Olivieri v. Olivieri, 170 A.D.3d 849, 850, 96 N.Y.S.3d 126 ), as are "the child's wishes," which become more important "as a child ages and matures" ( Matter of Acosta v. Lorber–Acosta, 178 A.D.3d 1031, 1034, 116 N.Y.S.3d 682 ). In addition, "the child's best interests [generally] lie in her [or him] being nurtured and guided by both natural parents, and in order for the noncustodial parent to develop a meaningful, nurturing relationship with the child, parental access must be frequent and regular" ( Matter of Cabano v. Petrella, 169 A.D.3d at 902, 94 N.Y.S.3d 376 [citation, alterations, and internal quotation marks omitted]). "The existence or absence of any one factor in determining custody cannot be determinative on appellate review since the court is to consider the totality of the circumstances" ( Matter of Pierce v. Caputo, 214 A.D.3d 877, 878, 185 N.Y.S.3d 283 [internal quotation marks omitted]).

"[T]his Court's authority in custody determinations is as broad as that of the hearing court, and while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, the hearing court's determination will not be affirmed if it lacks a sound and substantial basis in the record" ( Matter of Smith v. Francis, 206 A.D.3d at 916, 170 N.Y.S.3d 195 [internal quotation marks omitted]). "Custody determinations should generally be made only after a full and plenary hearing" ( Matter of Liang v. O'Brien, 216 A.D.3d at 1101, 189 N.Y.S.3d 287 ). "Effective appellate review, especially in proceedings involving child custody determinations, requires that appropriate factual findings be made by the trial court—the court best able to measure the credibility of the witnesses" ( Matter of Georgiou–Ely v. Ely, 194 A.D.3d 715, 716, 143 N.Y.S.3d 584 [internal quotation marks omitted]). "Since a court has an obligation to make an objective and independent evaluation of the circumstances, a custody determination should be made only after a full and fair hearing at which the record is fully developed. This allows the court to fulfill its duty to make an enlightened, objective and independent evaluation of the circumstances" ( Matter of Pinto v. Pinto, 177 A.D.3d 746, 747–748, 114 N.Y.S.3d 370 [citations and internal quotation marks omitted]).

Here, the Family Court properly determined that a change in circumstances existed to warrant modification of the July 2018 order based, inter alia, upon the deterioration of the parties’ relationship and the mother's alleged interference with the father's parental access rights (see Matter of Liang v. O'Brien, 216 A.D.3d at 1101, 189 N.Y.S.3d 287 ; Matter of Pierce v. Caputo, 214 A.D.3d at 878–879, 185 N.Y.S.3d 283 ; Matter of Williams v. Norfleet, 140 A.D.3d 1078, 1079, 34 N.Y.S.3d 145 ). However, under the circumstances, the court improvidently exercised its discretion in denying the father's petition and concluding, based on the record before it, that the child's best interests were not served by a change in custody (see Matter of Georgiou–Ely v. Ely, 194 A.D.3d at 716, 143 N.Y.S.3d 584 ; Matter of Stramezzi v. Scozzari, 106 A.D.3d 748, 750, 964 N.Y.S.2d 585 ; cf. Matter of Frankiv v. Kalitka, 105 A.D.3d 1045, 1046, 963 N.Y.S.2d 393 ).

As the father correctly asserts, "[a]...