Shah v. Shah

186 A.D.3d 1692

132 N.Y.S.3d 45

In the Matter of Bhavna SHAH, Appellant,

v.Chirag SHAH, Respondent. (Proceeding No. 1)

In the Matter of Chirag Shah, Respondent,

v.Bhavna Shah, Appellant. (Proceeding No. 2)

2019–10010

Docket Nos. V–5283–18

V–5284–18

V–8707–18

V–8708–18

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

Submitted—September 8, 2020

September 30, 2020

Marion C. Perry, Brooklyn, NY, for appellant.

Sushrut K. Pandya, New York, NY, for respondent.

Joel Serrano, Jamaica, NY, attorney for the children.

ALAN D. SCHEINKMAN, P.J., JOHN M. LEVENTHAL, ROBERT J. MILLER, PAUL WOOTEN, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Emily M. Martinez, Ct. Atty. Ref.), dated August 9, 2019. The order, after a hearing, dismissed the mother's petition to enforce the custody provisions of a judgment of divorce entered December 28, 2015, which incorporated but did not merge the parties' stipulation of settlement dated June 4, 2013, granted the father's cross petition to modify the custody provisions of the judgment of divorce so as to award him sole legal and physical custody of the subject children, and directed that the mother "may have parenting time as the parties mutually agree and arrange, considering the wishes of the children."

ORDERED that the order is modified, on the law, by deleting the provision thereof directing that the mother "may have parenting time as the parties mutually agree and arrange, considering the wishes of the children"; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Family Court, Queens County, to set forth, with all convenient speed, a schedule for the mother's parental access with the children.

The parties were married in 2003, and have two children together. In June 2013, the parties entered into a stipulation of settlement, which provided, inter alia, for joint legal custody of the children, with parental access on alternating weeks. The stipulation of settlement was incorporated but not merged into the parties' judgment of divorce entered December 28, 2015. In 2018, the mother filed a petition to enforce her entitlement to parental access. The father cross-petitioned to modify the custody provisions of the judgment of divorce so as to award him sole legal and physical custody of the children. In an order dated August 9, 2019, the Family Court dismissed the mother's petition, granted the father's cross petition, and directed that the mother "may have parenting time as the parties mutually agree and arrange, considering the wishes of the children." The mother appeals.

" ‘Modification of an existing court-sanctioned custody or [parental access] arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]’ " ( Matter of Miller v. Thompson , 184 A.D.3d 643, 644, 126 N.Y.S.3d 138, quoting Matter of O'Shea v. Parker , 116 A.D.3d 1051, 1051, 983 N.Y.S.2d 903 ). "The best interests of the children must be determined by a review of the totality of the circumstances" ( Matter of Suarez v. Suarez , 176 A.D.3d 830, 832, 112 N.Y.S.3d 218 ; see Eschbach v. Eschbach , 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). "Furthermore, [w]hile the express wishes of [the] children are not controlling, they are entitled to great weight, particularly where their age and maturity would make their input particularly meaningful" ( Matter of Rabinowich v. Rabinowich , 178 A.D.3d 1052, 1053, 117 N.Y.S.3d 71 [internal quotation...