Zhao v. Rong

183 A.D.3d 895

122 N.Y.S.3d 899 (Mem)

In the Matter of SHU JIAO ZHAO, Appellant,

v.WEI RONG, Respondent.

2019–03196

2019–03197

Docket No. V–9609–17/18F

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

Argued—February 20, 2020

May 27, 2020

Richard Cardinale, Brooklyn, NY, for appellant, and appellant pro se.

Lewis S. Calderon, Jamaica, NY, for respondent.

Janet L. Brown, Jamaica, NY, attorney for the child.

CHERYL E. CHAMBERS, J.P., JOHN M. LEVENTHAL, VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Queens County (Marilyn J. Moriber, Ct. Atty. Ref.), dated March 25, 2019, and (2) an order of the same court dated March 26, 2019. The order dated March 25, 2019, after a hearing, granted the father's petition to modify a prior order of custody and parental access of the same court dated August 12, 2013, so as to award him sole legal and physical custody of the parties' child, and, in effect, denied the mother's petition to enforce the same order. The order dated March 26, 2019, granted the father's motion, made at the close of his case at the hearing, for a determination that he should be awarded sole legal and physical custody of the parties' child.

ORDERED that the appeal from the order dated March 26, 2019, is dismissed, without costs or disbursements, as no appeal lies as of right from a nondispositional order in a proceeding pursuant to Family Court Act article 6, and leave to appeal has not been granted (see Family Ct Act § 112[a] ); and it is further,

ORDERED that the order dated March 25, 2019, is affirmed, without costs or disbursements.

The parties are the parents of one child, born in 2005. By order dated August 12, 2013 (hereinafter the custody order), the parties were awarded joint legal custody of the child, with primary physical custody to the mother and parental access to the father. However, in March 2017, the child began living with the father following a breakdown in the relationship between the mother and the child. In May 2017, the father filed a petition seeking to modify the custody order so as to award him sole legal and physical custody of the child. In April 2018, the mother filed a petition seeking to enforce the custody order. After a hearing, the Family Court found that it was in the best interests of the child to remain with the father and that the father had established that a change of circumstances existed at the time of the filing of his petition in May 2017. By order dated March 25, 2019, the court granted the father's petition for sole legal and physical custody of the child and, in effect, denied the mother's petition. The mother appeals.

We agree with the Family Court's determination awarding sole legal and physical custody of the child to the father. The breakdown in the relationship between the mother and the child, which resulted in the child not wanting to live in the mother's home, constituted a change of circumstances warranting an inquiry into whether a modification of the custody order was necessary to ensure the child's best interests (see Matter of Richard GG. v. M. Carolyn GG., 169 A.D.3d 1169, 94 N.Y.S.3d 644 ; Matter of Gonzalez v. Hunter, 137 A.D.3d 1339, 26 N.Y.S.3d 625 ; Matter of Boggio v. Boggio, 96 A.D.3d 834, 945 N.Y.S.2d 764 ). The totality of the circumstances supports a finding that it was in the child's best interests to award sole legal and physical custody to the father (see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Bowe v. Bowe, 124 A.D.3d 645, 1 N.Y.S.3d 301 ).

" ‘[F]indings of the Family Court which have a sound and substantial basis in the record are generally entitled to great deference on appeal because any custody determination depends to a great extent on the court's assessment of the credibility of the witnesses and the character, temperament, and sincerity of the parties’ " ( Matter of Newton v. McFarlane, 174 A.D.3d 67, 79, 103 N.Y.S.3d 445, quoting Matter of Agyapon v. Zungia, 150 A.D.3d 1226, 1227, 56 N.Y.S.3d 198 ; see Matter of Pritchard v. Coelho, 177 A.D.3d 887, 888, 115 N.Y.S.3d 37 ; Matter of Dolan v. Masterton, 121 A.D.3d 979, 995 N.Y.S.2d 123 ). Here, there is no basis in the record to disturb the Family Court's determination that the mother's testimony was not credible, and that it was in the best interests of the child to award the father sole legal and physical custody (see Matter of Pritchard v. Coelho, 177 A.D.3d at 888, 115 N.Y.S.3d 37 ; Matter of Dolan v. Masterton, 121 A.D.3d at 980, 995 N.Y.S.2d 123 ).

Furthermore, the child, who was 14 years old at the time of the hearing, expressed a wish to live with the father. Although her wish is not controlling, it is some indication of what is in her best interests, particularly where, as...