McDowell v. Marshall

210 A.D.3d 781

178 N.Y.S.3d 173

In the Matter of James Clayton MCDOWELL, respondent,

v.Chaya Mushka MARSHALL, appellant.

2021-07729, 2021-07731

Docket No. V-24551-15/19B

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

Argued—October 3, 2022

November 9, 2022

Abrams Fensterman, LLP, White Plains, NY (Robert A. Spolzino and Lisa Colosi Florio of counsel), for appellant.

Paul Leavin, New York, NY, for respondent.

Karen P. Simmons, Brooklyn, NY (Janet Neustaetter of counsel), attorney for the child.

FRANCESCA E. CONNOLLY, J.P., ROBERT J. MILLER, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Kings County (Kathleen C. Waterman, J.), dated October 1, 2021, and (2) an amended order of the same court dated October 13, 2021. The order and the amended order, insofar as appealed from, after a hearing, granted the father's petition to modify the custody provisions of a stipulation dated June 12, 2017, set aside the stipulation, awarded the father primary physical custody of the child and final decision-making authority, and directed the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense.

ORDERED that the appeal from the order dated October 1, 2021, is dismissed, without costs or disbursements, as it was superseded by the amended order dated October 13, 2021; and it is further,

ORDERED that the amended order dated October 13, 2021, is modified, on the law, the facts, and in the exercise of discretion, by deleting the provision thereof directing the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense; as so modified, the amended order dated October 13, 2021, is affirmed insofar as appealed from, without costs or disbursements, and the order dated October 1, 2021, is modified accordingly.

The parties have one child together, who was born in February 2015. The parties entered into a stipulation dated June 12, 2017, which provided for, inter alia, joint legal custody with primary residential custody to the mother. In September 2018, the mother commenced a family offense proceeding alleging that the father sexually abused the child, and at the same time, also filed a petition to modify the custody arrangement premised on a substantial change of circumstances. The family offense proceeding, asserting allegations of sexual abuse, which allegations were investigated by the New York Police Department from September 2018, and subsequently determined to be unfounded by the Administration for Children's Services, was dismissed in June 2019. By order dated June 25, 2019, the father's unsupervised visitation was resumed.

In October 2019, the mother had the child treated at an urgent care center for a rectal irritation, and reiterated the allegations of sexual abuse. When the child was examined, he engaged in a tantrum and was transported to the hospital by ambulance. This course of events caused the father to commence the instant proceeding to modify the custody arrangement so as to award him primary physical custody of the child and final decision-making authority. At the commencement of the hearing on the father's modification petition, the mother withdrew her modification petition. The Family Court, after a hearing, inter alia, granted the father's petition, set aside the stipulation dated June 12, 2017, awarded the father primary physical custody of the child and final decision-making authority, and directed the mother to seek permission from the court before filing any additional petitions, whether for custody or alleging a family offense. The mother appeals.

" ‘In order to modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances so that modification is required to protect the best interests of the child’ " ( Silla v. Silla, 200 A.D.3d 1091, 1092, 155 N.Y.S.3d 817, quoting Majeed v. Majeed, 194 A.D.3d 916, 917, 144 N.Y.S.3d 365 ). "The best interests of the child must be determined by a review of the totality of the circumstances" ( Matter of Walker v. Sterkowicz–Walker, 203 A.D.3d 1165, 1167, 163 N.Y.S.3d 441 ). Repeated and unfounded allegations of sexual abuse are a sufficient change of circumstances (see Matter of Honeywell v. Honeywell, 39 A.D.3d 857, 835 N.Y.S.2d 327 ). Further, where the initial custody arrangement is based upon an agreement...