IN RE: Karlil WILLIAMS (2024)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, petitioner-respondent father appeals from an order that, inter alia, modified the parties’ prior order of custody and parenting time by awarding sole legal custody and primary residency of the subject child to respondent-petitioner mother.

The father contends that the mother did not adequately plead a change in circumstances in her petition for modification of the prior order. That contention, raised for the first time on appeal, is not properly before this Court (see Matter of Sierak v. Staring, 124 A.D.3d 1397, 1398, 1 N.Y.S.3d 696 [4th Dept. 2015]). In any event, the mother adequately pleaded a change in circumstances by alleging that the father “repeatedly and consistently neglected to exercise his right to full [parenting time]” (Matter of Kriegar v. McCarthy, 162 A.D.3d 1560, 1560, 78 N.Y.S.3d 566 [4th Dept. 2018]) and that he was unable to communicate effectively with her (see Matter of Spiewak v. Ackerman, 88 A.D.3d 1191, 1192, 932 N.Y.S.2d 207 [3d Dept. 2011]; see generally Matter of Melish v. Rinne, 221 A.D.3d 1560, 1561, 200 N.Y.S.3d 235 [4th Dept. 2023]).

We reject the father's contention that Family Court erred in granting sole legal custody and primary residency to the mother, thereby significantly reducing his parenting time. Here, “the evidence at the hearing established that the parties have an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances” (Matter of Capobianco v. Capobianco, 162 A.D.3d 1570, 1570, 78 N.Y.S.3d 576 [4th Dept. 2018], lv denied 32 N.Y.3d 905, 2018 WL 4924704 [2018] [internal quotation marks omitted]; see Matter of Mattice v. Palmisano, 159 A.D.3d 1407, 1408, 72 N.Y.S.3d 681 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2921144 [2018]). We conclude that there is a sound and substantial basis in the record for the court's determination that an award of sole legal custody and primary residency to the mother with parenting time to the father was in the child's best interests, and we therefore decline to disturb that determination (see generally Matter of Russell v. Russell, 173 A.D.3d 1607, 1609, 105 N.Y.S.3d 626 [4th Dept. 2019]; Matter of Thayer v. Ennis, 292 A.D.2d 824, 825, 739 N.Y.S.2d 321 [4th Dept. 2002]).