Saymone N. v. Joshua A.

2022 NY Slip Op 64669(U)

In the Matter of Saymone N., Petitioner-Respondent, v. Joshua A., Respondent-Appellant.

Appeal No. 15048 No. 2021-01273

No. 2022-00944

Docket No. V-24453-18/18A

Supreme Court of New York, First Department

February 10, 2022

Larry S. Bachner, New York, for appellant.

Anne Reiniger, New York, for respondent.

The Children's Law Center, Brooklyn (Janet Neustaetter of counsel), attorney for the child.

Before: Acosta, P.J., Manzanet-Daniels, González Mendez, Rodriguez, JJ.

Order Family Court, Bronx County (Ariel D. Chesler, J.), entered on or about April 12, 2021, which, after a virtual hearing granted petitioner mother's application to modify a prior custody order by granting her sole legal and physical custody of the child with visitation to respondent father unanimously affirmed, with costs.

The court had the authority to modify its hearing procedures (see Judiciary Law § 2-b). Contrary to the father's vitriol and the disdain for the hearing court exhibited by both counsel, the record is clear that the court conducted the proceedings fairly, preserving the parties' due process rights. ^[1] Given that the case had been pending since August 2018, the court providently decided to proceed with minor limitations in a virtual courtroom rather than wait until court operations returned to "normal" (see Matter of Newton v McFarlane, 174 A.D.3d 67, 76 [2d Dept 2019] ['The existence of custody litigation, by itself, can create trauma and uncertainty for the child, as well as trauma, uncertainty, and expense for the parents"]), especially since at the time of the hearing, there was uncertainty as to when the courts would in fact return to "normal" operations (see e.g. Bonilla v State, 71 Misc.3d 235, 239 [Ct Cl 2021] [the defendant's insistence that the parties and the court "wait out the pandemic" was untenable given that "no one can say with any assurance when in-court proceeding will again be possible"]). Moreover, the court attempted to keep counsel focused on disputed issues, rather than making lengthy presentations on irrelevant evidence and background information that was not in dispute.

The court properly found a change in circumstances, and there is a sound and substantial basis for the best interest determination (see Family Court Act § 652 [b] [ii]; Eschbach v Eschbach, 56 N.Y.2d 167, 172 [1982]). As to the change in circumstances, between March 2017, when the last custody order was entered, and September 2018, the order of protection against the mother expired, the mother lived with the father and the child, and the father allegedly engaged in domestic violence and assaulted a third person in front of the child (see Matter of Markis L. v Jacquelyn C., 189 A.D.3d 580, 580 [1st Dept 2020]). Between March 2017 and the filing of the amended petition in November 2020, the father was incarcerated for four months, during which time the mother cared for the child. These events resulted in changed circumstances.

As for the best interests of the child, the father offers no reason to disturb the court's crediting the mother's testimony that he choked her, even though it was uncorroborated, and she withdrew her family offense petition. The record also raises some concerns about his parental judgment since he committed assault in proximity of the child.

In addition, the record establishes that the mother is more likely to meet the child's needs, while the father moves often. In 2019, while in the father's care, the child...