JUNE 22, 2022

Matter of Hamid v. Ramroop, 2021-04671

The father appeals from a Family Court order that denied the father’s objections to an order which, after a hearing, and upon findings of fact, dismissed his petition for child support without prejudice.

The Family Court properly denied the father’s objections on the grounds that he failed to file proof of service of a copy of the objections upon the mother.  It is undisputed that the father did not file the requisite “proof of service” since no affidavit of service in the form required by CPLR 306 was filed with the Family Court.  The father failed to fulfill a condition precedent to the filing of objections and, thus, failed to exhaust the Family Court procedure for review of such objections (see Matter of Michael H. v. Kristen L., 179 AD3d 1065, 1067; Matter of Hopkins v. Hopkins, 178 AD3d 1045, 1046; Matter of Ishmael A.A.-S. v. Sacha C., 169 AD3d 662, 663; Matter of Carroll v. Brodsky, 168 AD3d 727, 728; Matter of Ndukwe v. Ogbaegbe, 150 AD3d 858, 858).  Thus, the father’s challenges to the order are not reviewable on appeal (see Matter of Ishmael A.A.-S. v. Sacha C., 169 AD3d at 663; Matter of Carroll v. Brodsky, 168 AD3d at 728).

 

Matter of Tedesco v. Mazzara, 2021-00315

The parties are the unmarried parents of one child.  Prior custody proceedings resulted in a so-ordered stipulation of settlement dated June 30, 2017, awarding the parties joint legal custody of the child, with primary physical custody to the mother and certain parental access to the father.  In a subsequent so-ordered stipulation (“counseling stipulation”), the parties agreed to attend counseling with the child to address “all parenting issues between the parents and the child.”

In May 2018, the mother petitioned to modify the custody and parental access stipulation so as to award her sole custody of the child and to limit the father to supervised parental access.  The father then petitioned to hold the mother in contempt for violating certain provisions of the custody and parental access stipulation and the counseling stipulation.  In an order, made after a hearing, the Family Court granted the mother’s petition and denied those branches of the father’s petition.  The father appealed.

Contrary to the father’s contention, the Family Court’s determination to award the mother sole custody has a sound and substantial basis in the record, “based upon evidence that the father’s temper and conduct was causing the child to experience escalating levels of anxiety, as well as the father’s limited insight into his behavior, and the child’s wishes” (see Matter of D’Amico v. Corrado, 129 AD3d 718, 719).  The court’s determination that it was in the best interests of the child to limit the father to supervised parental access and supervised therapeutic parental access has a sound and substantial basis in the record and will not be disturbed (see Matter of Donkor v. Donkor, 198 AD3d 892, 893).

The father failed to meet his burden because the evidence did not establish that the mother violated an unequivocal mandate contained in either of the parties’ stipulations (see Matter of Herbst v. Palange, 193 AD3d at 860).  The Family Court properly denied those branches of the father’s petition which were to hold the mother in contempt.

 

Matter of Smith v. Francis, 2021-04007

The parties are parents of one child.  In an August 31, 2017 order, the Family Court awarded the parties joint legal custody of the child, with residential custody to the father and parental access to the mother.  The mother then filed a petition to modify the order, and, in a 2018 custody order, the Family Court granted the petition to the extent of awarding the mother additional parental access.  In May 2019, the mother petitioned to modify the 2018 custody order so as to award her residential custody of the child.  The court conducted a hearing, at which it heard testimony from the mother and one of the child’s teachers, and the father, proceeding pro se, testified in narrative form.  The court also conducted an in camera interview of the child.  The court then, in effect, denied the mother’s petition, concluding that the mother had failed to prove that there had been a change in circumstances warranting a modification of the existing custody arrangement.  The mother appealed, and the Appellate Division reversed.

While the Family Court stated in its decision that the allegations in the mother’s petition “largely stem from the difficulties that the parties have in co-parenting which predate her petition,” and that “both parties contribute to continuing the conflict between one another,” the court did not identify the facts established at the hearing that supported its denial of the petition.  However, the matter need not be remanded for factual findings, since the record is sufficient to permit the Second Department to conduct an independent review of the evidence (see Matter of Jose L.I., 46 NY2d at 1026; Matter of Gray v. Tyson, __ AD3d __, 2022 NY Slip Op 02998).  The Second Department found that the determination that there had been no change in circumstances warranting a transfer of residential custody to the mother lacks a sound and substantial basis in the record (see Matter of Georgiou-Ely v. Ely, 181 AD3d 885, 886; Matter of Errante v. Murry, 172 AD3d 711, 713).

The record demonstrates that, in support of her petition, the mother clearly established conflict between the parties and difficulties in co-parenting.  The evidence showed that, on numerous occasions after the issuance of the 2018 custody order, the father, in the child’s presence, denigrated the mother and behaved inappropriately toward her (see Matter of Georgiou-Ely v. Ely, 181 AD3d at 886; Matter of Errante v. Murry, 172 AD3d at 713; Matter of Burke v. Cogan, 122 AD3d 625, 626).  The father consistently failed to make the child available for calls with the mother as required by the original custody order, constantly ignored the mother’s attempted contact with the child, and repeatedly failed to comply with the court-ordered parental access schedule (see Matter of Sachs v. Asotskaya, 136 AD3d 618; Matter of Zeis v. Slater, 57 AD3d 793, 794).   The testimony at the hearing established that “the father not only refused to foster a good relationship between the mother and the child- he expressly testified that he did not believe he had an obligation to do so- but actively sought to thwart such a relationship.”  Further, the testimony established that, following the issuance of the 2018 custody order, the father demonstrated a lack of interest in the child’s education and development by refusing to have the child evaluated for learning disabilities or treated for his speech impediment (see Matter of Errante v. Murry, 172 AD3d at 713; Matter of Bullard v. Clark, 154 AD3d at 847).

The Family Court should have granted the mother’s petition to modify the order so as to award her residential custody of the child.  The order appealed from is reversed, the mother’s petition is granted, and the matter is remanded to establish an appropriate parental access schedule for the father that is in the best interests of the child.