Nina M.T. v. Desabato

198 A.D.3d 791

156 N.Y.S.3d 271

In the Matter of NINA M.T. (Anonymous), petitioner-respondent,

v.Coreen DESABATO, respondent-respondent,Matthew Thomas, appellant.

2020–06652

Docket No. V–9548–19

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

Argued—September 21, 2021

October 13, 2021

Law Office of John M. Zenir, Esq., P.C., Garden City, NY, for appellant.

Regina A. Matejka, Garden City, NY, for respondent-respondent.

Amy L. Colvin, Huntington, NY, attorney for the child, the petitioner-respondent.

MARK C. DILLON, J.P., ANGELA G. IANNACCI, LINDA CHRISTOPHER, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Nassau County (Eileen C. Daly–Sapraicone, J.), dated April 30, 2020. The order, after a hearing, sua sponte, awarded sole legal and residential custody of the subject child to the mother and supervised therapeutic parental access to the father.

ORDERED that the order is reversed, on the law, without costs or disbursements.

The mother and the father, who were never married, are the parents of a child born in February 2004 who has significant medical disorders. When the child was seven years old, the mother and the father consented to the entry of an order dated June 10, 2011, that awarded them joint legal custody of the child, with the mother having primary residential custody and the father having parental access, and awarded the mother sole decision-making authority with regard, inter alia, to the child's medical care (hereinafter the prior order of custody).

On September 10, 2018, and December 17, 2018, the father filed petitions to modify the prior order of custody so as to award him sole legal and residential custody of the child, alleging that the mother was giving the child excessive amounts of certain substances, including L-tryptophan and diphenhydramine. On December 14, 2018, the mother filed a violation petition, alleging, inter alia, that the father was not complying with the prior order of custody and requesting that the prior order of custody be modified so as to restrict the father's participation in medical treatment of the child. On October 31, 2019, while the parents’ petitions were pending and a hearing was being conducted, the attorney for the child filed a petition requesting that the mother be awarded temporary custody of the child and that the father's parental access be temporarily suspended. The Family Court thereafter conducted a hearing on the petition filed by the attorney for the child.

On November 12, 2019, the Family Court granted the mother's motion to dismiss the father's two modification petitions and re-opened the hearing on the petition filed by the attorney for the child. The mother subsequently filed a petition to modify the prior order of custody so as to restrict the father's participation in medical treatment of the child and then presented her case on her violation petition and her modification petition. The re-opened hearing on the petition filed by the attorney for the child concluded on November 26, 2019, and the hearing on the mother...