The mother and father each petitioned for sole legal and residential custody of their child. Following a hearing that commenced in 2016 and continued until 2018, the Family Court denied the mother’s petition, granted the father’s petition, and awarded the mother unsupervised parental access. The mother appealed, and the father cross-appealed.
The Family Court’s determination that the child’s best interests would be served by awarding the father sole custody with unsupervised parental access to the mother has a sound and substantial basis in the record. The evidence established that the child, who was 7 years old at the time the hearing commenced, and is now 13 years old, has “vociferously expressed” his preference to live with the father, with whom he is deeply bonded, and with whom he has lived since he was approximately 4 years old, while also having only limited contact with the mother (see Matter of Luo v. Yang, 103 AD3d 636, 637; Matter of Lobo v. Muttee, 196 AD2d 585).
The mother’s unsubstantiated and conclusory allegations supporting her petition to modify the order so as to award her joint legal and sole residential custody, were insufficient to warrant a hearing (see Majeed v. Majeed, 194 AD3d 916, 917; Matter of Chichra v. Chichra, 148 AD3d 883, 885).
The mother presented prima facie evidence of the father’s failure to meet his child support obligations. The father then failed to present competent, credible evidence of his inability to comply with the order of child support (see Matter of Duncan v. Defreese, 193 AD3d at 729). Specifically, he failed to submit sufficient evidence to support his allegation that he was unable to contribute any sum of his social security disability benefits income toward child support in the approximately three-year period after he began to receive that income (see Matter of Powers v. Powers, 86 NY2d at 70; Matter of Ferrer v. Brown, 165 AD3d 929, 931; Matter of Stradford v. Blake, 141 AD3d 725, 726).
The Second Department determined that the Family Court did not improvidently exercise its discretion in directing the father to serve a 90-day period of incarceration unless he paid a $13,000 purge amount (see Family Ct Act § 454[a]; Matter of Martucci v. Nerone, 198 AD3d at 655; Matter of Nickel v. Nickel, 172 AD3d 1210, 1212; Matter of Cameron v. King, 160 AD3d 945, 947; Matter of Sullivan v. Kilkenny, 141 AD3d at 535).
Pursuant to a stipulation of settlement which was incorporated into their judgment of divorce, the parties had joint legal and physical custody. In a May 9, 2019 order, the Family Court granted the mother’s petition to modify the custody provisions of the judgment of divorce so as to award her sole physical custody. The mother subsequently moved to modify the custody provisions of the judgment and the May 2019 order so as to award her sole legal custody as well. The court, without a hearing, granted the mother sole legal custody, and awarded the father unsupervised parental access with the parties’ youngest child once monthly for a period of up to five hours. The father appealed.
The record does not establish the absence of unresolved factual issues so as to render a hearing unnecessary (see S.L. v. J.R., 27 NY3d at 563; Matter of Merchant v. Caldwell, 198 AD3d at 784). The Second Department found instead that the record suggests that the award of sole legal custody to the mother “served more as a punishment to the father for his misconduct than as an appropriate custody award in the [children’s] best interests” (Matter of Williams v. Jenkins, 167 AD3d 758, 760 [alterations and internal quotation marks omitted]; see Matter of Kadyorios v. Kirton, 130 AD3d 732, 734). The Family Court initially limited the mother to only decision-making authority relating to education for the parties’ youngest child, then “abruptly” awarded sole legal custody of the children to the mother after the father stated that the court’s decisions were “ridiculous” and “demand[ing] we go to trial.” “The court advised the father that his interjections ‘[c]hanged my mind,’ and that ‘I was going to give you the option . . . to remain a joint custodian, but . . . you didn’t let me even finish my thought.’” The Second Department determined that while “the [father’s] disrespect for the court’s authority should not be countenanced, . . . this was not a sufficient basis to modify custody” (Matter of Kadyorios v. Kirton, 130 AD3d at 734).
The matter is remanded for a hearing and a new determination of the mother’s motion. It is also appropriate given the circumstances of the case to hold the further proceedings before a different Judge.
After a hearing, the Court granted plaintiff’s motion to hold the defendant in contempt and for an award of certain child support arrears for educational, summer camp, extracurricular, and orthodontic expenses of the children, to the extent of awarding her the sum of $256,000, plus $15,000 for attorneys’ fees. The defendant appealed.
The defendant’s argument that the amount awarded was not actually child support because child support is limited to basic child support and not “add-ons” is without merit (see Cimons v. Cimons, 53 AD3d 125, 134-135). The parties opted out of the Child Support Standards Act (“CSSA”) (see Domestic Relations Law § 240[1-b]) and agreed that the defendant’s “entire child support contribution” would be to continue to make payments to the providers to cover the expenses for all children. Even if the parties had not agreed to opt out of the CSSA, Domestic Relations Law § 240(1-b)(b)(2) defines child support as “a sum to be paid pursuant to court order or decree by either or both parents or pursuant to a valid agreement between the parties for care, maintenance and education of any unemancipated child under the age of twenty-one years,” which includes the expenses at issue here.
The plaintiff’s request for an award of child support arrears was not time-barred (see CPLR 211[e]), nor did the plaintiff waive her right to the arrears based upon the lapse of time in seeking enforcement (see Dox v. Tynon, 90 NY2d 166, 176). The defendant conceded that although he paid $16,000, representing child support payments for educational and summer camp expenses in 1999, he made none of the required child support payments as provided by in the stipulation and the judgment for the following 16 years (see e.g. Matter of Muenichsdorfer v. Biagiotti, 179 AD3d 805, 808).