Paige v. Paige

202 A.D.3d 794

163 N.Y.S.3d 179

In the Matter of Kareem PAIGE, respondent,

v.Jeanien PAIGE, appellant.

2021–00454

Docket No. V–17923–17

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

Submitted—December 9, 2021

February 9, 2022

Salvatore C. Adamo, New York, NY, for appellant.

Christian P. Myrill, Jamaica, NY, for respondent.

Janet E. Sabel, New York, NY (Dawne A. Mitchell and Riti P. Singh ), attorney for the child.

MARK C. DILLON, J.P., VALERIE BRATHWAITE NELSON, REINALDO E. RIVERA, SYLVIA O. HINDS–RADIX, PAUL WOOTEN, JJ.

DECISION & ORDER

In a custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated December 22, 2020. The order, insofar as appealed from, after a hearing, granted the father's petition to modify an order of the same court dated April 18, 2018, awarding the mother sole legal and physical custody of the subject child, so as to award the father sole legal and physical custody of the child.

ORDERED that the order dated December 22, 2020, is reversed insofar as appealed from, on the facts and in the exercise of discretion, and the father's petition to modify the order dated April 18, 2018, so as to award him sole legal and physical custody of the subject child is denied.

The father and the mother are the married parents of the subject child, who was born in April 2013. The parties lived together until March 2016, when the father moved out of the home, and the child continued to live with the mother. In an order dated April 18, 2018, the Family Court awarded sole legal and physical custody of the child to the mother. In June 2018, the New York City Administration for Children's Services (hereinafter ACS) filed neglect petitions against the mother and nonparty Calique E. (hereinafter Calique), the father of another child of the mother, alleging, inter alia, that they had misused marijuana. In August 2018, the subject child was temporarily released to the father's care during the neglect proceeding.

In November 2018, the father filed the instant petition pursuant to Family Court Act article 6 to modify the April 18, 2018 order so as to award him sole legal and physical custody of the child, alleging that the commencement of the neglect proceeding constituted a change of circumstances since the entry of that order. In an order dated December 22, 2020, made after a hearing, the Family Court granted the father's petition to modify the April 18, 2018 order so as to award him sole legal and physical custody of the child. The mother appeals.

"An order of custody or parental access may be modified only upon a showing that there has been a subsequent change of circumstances such that modification is required to protect the best interests of the child" ( Matter of Georgiou–Ely v. Ely, 181 A.D.3d 885, 885, 122 N.Y.S.3d 333 ; see Matter of Deondre R. [Annabel R.], 189 A.D.3d 1252, 134 N.Y.S.3d 215 ). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Georgiou–Ely v. Ely, 181 A.D.3d at 885, 122 N.Y.S.3d 333 ). " ‘Since weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference’ " ( Matter of Vargas v. Gutierrez, 155 A.D.3d 751, 753, 64 N.Y.S.3d 76, quoting Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273 ). Nevertheless, "this 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 Follini v. Currie, 176 A.D.3d 1203, 1205, 113 N.Y.S.3d 260 [citation omitted]; see Matter of Nevarez v. Pina, 154 A.D.3d 854, 855, 62 N.Y.S.3d 175 ; Matter of Caruso v. Cruz, 114 A.D.3d 769, 772, 980 N.Y.S.2d 137 ).

Here, the Family Court's determination that there was a change of circumstances since the issuance of the prior custody order such that an award of sole legal and physical custody to the father was required to protect the best interests of the child lacks a sound and substantial basis in the record (see Matter of Lopez v. Chasquetti, 148 A.D.3d 1151, 1153–1154, 50 N.Y.S.3d 485 ; Matter of Caruso v. Cruz, 114 A.D.3d at 773, 980 N.Y.S.2d 137 ; Matter of Sidorowicz v. Sidorowicz, 101 A.D.3d 737, 738, 955 N.Y.S.2d 194 ). Although in August 2018 the child was removed from the mother's care during the neglect proceeding, in March 2020 an attorney representing ACS submitted into evidence at the hearing a progress report of ACS's supervision of the mother, which indicated that she had successfully completed all required services in connection with the neglect proceeding, including substance abuse counseling, that visits to the mother's home revealed "no concerns or issues," and that the mother "display[ed] a positive and a nurturing relationship" with the child. The attorney stated that ACS had no objections to the mother having sole custody of the child. ACS's attorney also submitted into evidence at the hearing a report prepared by Heartshare, which also had conducted visits to the mother's home. The report indicated that Heartshare's caseworker had "never observed [the mother] to appear under the influence of any substances or seen any evidence of substances in the [mother's] home." Further, no testimony was elicited at the hearing that the mother continued to misuse marijuana or any other illegal substances, or which called into question the mother's ability to care for the child (see Matter of Lopez v. Noreiga, 182 A.D.3d 551, 553, 122 N.Y.S.3d 653 ). Indeed, at the conclusion of the hearing the court found that "[t]he child is well cared for by her Father and Mother " (emphasis added), and that "both parents are capable of meeting the child's educational needs." While the record demonstrates that the child is well cared for by the father and that, as noted by our dissenting colleagues, the father "fosters a safe and stable environment for the child," the father's ability to care for the child was insufficient to establish a change of circumstances "such that modification is required to protect the best interests of the child" ( Matter of Georgiou–Ely v. Ely, 181 A.D.3d at 885, 122 N.Y.S.3d 333 ).

To the extent the Family Court expressed concern that the presence of Calique, the father of another child of the mother, "makes [the mother's home] less stable," the court's finding has no basis in the record. The mother's testimony was uncontested that she had ended her relationship with Calique, who had never even been to her current residence, and that she had not had any further contact with Calique after an incident in which she called the police and Calique was arrested. Indeed, the court acknowledged in the order on appeal that, after the incident, the mother "took all necessary and appropriate steps ... by calling law enforcement," and failed to explain why the mother should be deprived of custody based upon her past relationship with an individual with whom she had broken off contact.

The Family Court also placed undue weight on an alleged suicide attempt by the mother in 2013, which predated the award of sole legal and residential custody to the mother in 2018 by several years, and thus, could not constitute a "change of circumstances since the [prior] custody determination" ( Matter of Lopez v. Chasquetti, 148 A.D.3d at 1153, 50 N.Y.S.3d 485 ). Further, while the court speculated in the order on appeal that the mother suffers from "on going [sic] emotional conditions," no testimony or evidence was presented at the hearing showing that the mother suffered from any mental condition, let alone one that would impede her ability to care for the child. To the contrary, the mother testified at the hearing that, although she previously experienced anxiety, she was not continuing to suffer from anxiety at the time of the hearing. This testimony was not contested by the father.

Furthermore, the Family Court failed to afford sufficient weight to conduct by the father which militated against awarding him sole custody. In particular, the mother testified that the father did not allow her to speak to the child by phone, Facetime, or other means while the child was at the father's home. The court did not find that testimony lacking in credibility, noting in its order that "[i]t is unclear ... why the child does not communicate with her Mother while in the Father's care," and presumed "[t]hat can be remedied by court order." In contrast, the father did not testify that he had any difficulties contacting the child whenever the child was staying with the mother. Moreover, the father acknowledged that he did not add the mother to the child's "blue card" at school for emergency contact information, despite the mother's repeated requests for him to do so. Indeed, the court found that the father "was not forthcoming on this issue." The father also acknowledged that he neglected to advise the mother of which school he had selected for the child to attend during the 2018–2019 school year.

While not determinative, we also note that the Family Court's determination to award sole legal and physical custody to the father was contrary to the wishes of the child to reside with the mother and the child's half-siblings who lived in the mother's home. "[T]he judicial preference of keeping siblings together, where possible, in order to encourage close familial relationships, is firmly established" ( Mohen v. Mohen, 53 A.D.3d 471, 475, 862 N.Y.S.2d 75 ; see Eschbach v. Eschbach, 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Kadi W. v. ACS–Kings, 167 A.D.3d...