Markis L. v. Jacquelyn C.

189 A.D.3d 580

134 N.Y.S.3d 184 (Mem)

In re MARKIS L., Petitioner–Respondent,

v.JACQUELYN C., Respondent–Appellant.

12664

Dkt. No. V-24176-06/17B

Case No. 2019-03497

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

ENTERED: December 17, 2020

Law Offices of Randall S. Carmel, Jericho (Randall S. Carmel of counsel), for appellant.

Bruce A. Young, New York, for respondent.

Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the child.

Manzanet–Daniels, J.P., Gesmer, Kern, Oing, Moulton, JJ.

Order, Family Court, Bronx County (Jennifer S. Burtt, Referee), entered on or about August 6, 2019, which, inter alia, granted petitioner father's petition for modification of a prior custody order and awarded him sole legal and physical custody of the subject child subject to the mother's visitation on alternate weekends, unanimously affirmed, without costs.

The father demonstrated a sufficient change in circumstances by showing that in the last two years, he secured a stable job and home, took on responsibility for the child's medical needs, and that the mother had engaged in a physical altercation with him in front of the child. These developments when paired with the child's desire to live with the father warranted an inquiry into whether the custody order, issued in 2007 while the child was an infant, was still serving the child's best interests (see Family Ct Act § 652[a] ; Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186, 926 N.Y.S.2d 310 [2d Dept. 2011], lv denied 17 N.Y.3d 714, 2011 WL 4977130 [2011] ).

The court's determination that primary physical custody to the father was in the best interests of the child is supported by a sound and substantial basis in the record (see Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Yolanda R. v. Eugene I.G., 38 A.D.3d 288, 831 N.Y.S.2d 387 [1st Dept. 2007] ). The record, taken as a whole, established that the father was better equipped to meet the day-to-day needs of the child. The mother's contention that the new physical custody arrangement would detrimentally affect the child's relationship with her maternal half-siblings and grandmother is not supported by the record and is unpersuasive in light of the child's expressed desire to reside with the father.

The court's determination that sole legal custody to the father was in the best interests of the child is also supported by a sound and substantial basis in the record. Joint legal custody is not appropriate where the parties are unable to coparent (see Lubit v. Lubit, 65 A.D.3d 954, 885 N.Y.S.2d 492 [1st Dept. 2009], lv...