R.K. v. R.G.

169 A.D.3d 892

94 N.Y.S.3d 622

R.K., Appellant-Respondent,

v.R.G., Respondent-Appellant.

2017–10388

Index No. 11797/07

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

Argued - January 25, 2019

February 20, 2019

Stephen Kolnik, Yonkers, NY, for appellant-respondent.

Cohen Rabin Stine Schumann LLP, New York, N.Y. (Tim James of counsel), for respondent-appellant.

Lawrence S. Horowitz, White Plains, NY, attorney for the child.

WILLIAM F. MASTRO, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, JOSEPH J. MALTESE, JJ.

DECISION & ORDER

In a matrimonial action in which the parties' marriage was annulled by a judgment dated November 8, 2012, the mother appeals, and the father cross-appeals, from an order of the Supreme Court, Westchester County (Janet C. Malone, J.), dated June 28, 2017, as amended by an order of the same court dated February 23, 2018. The order dated June 28, 2017, as amended, insofar as appealed from, after a hearing, directed that the mother's four weeks of summer parental access with the parties' child be nonconsecutive, directed that the father shall have parental access with the parties' child on the first three weekends of every month, directed that the mother shall pay 58% of the cost of a parenting coordinator, and authorized the parenting coordinator to resolve issues between the parties. The order dated June 28, 2017, as amended, insofar as cross-appealed from, in effect, denied that branch of the father's motion which was to modify the custody provisions of the judgment of annulment so as to award him sole physical and legal custody of the parties' child, and awarded him only certain parental access.

ORDERED that the order dated June 28, 2017, as amended by the order dated February 23, 2018, is modified, on the law, on the facts, and in the exercise of discretion, by (1) deleting the provision thereof directing that the mother's four weeks of summer parental access with the parties' child be nonconsecutive, (2) deleting the provision thereof directing that the father shall have parental access with the parties' child on the first three weekends of every month and substituting therefor a provision directing that the father shall have parental access with the parties' child on alternate weekends and one overnight visit per week during the year; (3) deleting the provision thereof directing that the mother shall pay 58% of the cost of a parenting coordinator and substituting therefor a provision directing that the parties shall share equally in paying the cost of a parenting coordinator; and (4) by deleting the provision thereof authorizing the parenting coordinator to resolve issues between the parties; as so modified, the order dated June 28, 2017, as amended by the order dated February 23, 2018, is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings to set forth a new parental access schedule consistent herewith.

The parties were married in 2006 and are the parents of one child (hereinafter the child), born in 2007. In 2007, the mother commenced an action for a divorce and ancillary relief against the father in which the father counterclaimed for an annulment. Pursuant to a judgment of annulment dated November 8, 2012, the parties' marriage was annulled, the mother was awarded sole legal and physical custody of the child, and the father was given parental access. Subsequently, the father moved, inter alia, to modify the custody provisions of the judgment of annulment so as to award him sole physical and legal custody of the child.

Following a hearing, the Supreme Court determined that, while the parties did not dispute that there had been a change in circumstances, the best interests of the child would not be served by either parent having sole legal custody of the child, and that the hostility between the parties precluded an award of joint legal custody. Nonetheless, the court awarded the parents "equal legal rights and responsibilities to the [c]hild." Among other things, the court directed that the mother's four weeks of summer parental access with the parties' child be nonconsecutive, directed that the father shall have parental access with the child on the first three weekends of every month beginning with timely pick up of the child on Thursday at the child's school or camp, or other mutually agreed upon location, with the child to be timely returned on Monday morning to the child's school or camp, or other mutually agreed location. Additionally, the court directed the parents to retain a parenting coordinator, and directed the mother to pay 58% of the cost of the coordinator. The court also determined that if the parents could not reach a mutual agreement after consulting with the parenting coordinator, "the Parent with whom the parenting coordinator agrees shall make the final decision."

To modify an existing custody arrangement, there must be a showing of a subsequent change of circumstances such that modification is required to protect the best interests of the child (see Gentile v. Gentile, 149 A.D.3d 916, 918, 52 N.Y.S.3d 420 ; Nusbaum v. Nusbaum, 106 A.D.3d 791, 793, 964 N.Y.S.2d 628 ; Matter of Fallarino v. Ayala, 41 A.D.3d 714, 838 N.Y.S.2d 176 ). 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, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). Inasmuch as custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, deference is accorded to the hearing court's findings in this regard (see Matter of McKenzie v. Williams, 165 A.D.3d 673, 674, 85 N.Y.S.3d 205 ; Matter of Gooler v. Gooler, 107 A.D.3d 712, 966 N.Y.S.2d 208 ; Matter of Harry v. Harry, 92 A.D.3d 883, 884, 938 N.Y.S.2d 808 ). The court's findings will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of McKenzie v. Williams, 165 A.D.3d at 674, 85 N.Y.S.3d 205 ; Gasby v. Chung, 88 A.D.3d 709, 930 N.Y.S.2d 471 ). Under the circumstances presented, the Supreme Court's determination, in effect, denying that branch of the father's motion which was to modify the custody provisions of the parties' judgment of annulment so as to award him sole physical and legal custody of the child has a sound and substantial basis in the record, and therefore, it will not be disturbed (see Matter of Vargas v. Gutierrez, 155 A.D.3d 751, 752–753, 64 N.Y.S.3d 76 ; see also Matter of Sullivan v. Sullivan, 40 A.D.3d 865, 866, 836 N.Y.S.2d 259 ).

However, we disagree with the Supreme Court's determination to direct that the father shall have parental access with the child on the first three weekends of every month. "The extent to which the noncustodial parent may exercise parental access is a matter committed to the sound discretion of the hearing court, to be determined on the basis of the best interests of the child" ( Chamberlain v. Chamberlain, 24 A.D.3d 589, 592, 808...