In the Mater of D.B., Petitioner–Appellant, v. S.P., Respondent–Respondent. (2026)

Order, Family Court, Bronx County (Jacyln Sherman, Ref.), entered on or about February 7, 2025, which granted petitioner father's petition seeking to modify the custody order dated September 19, 2022 to the extent of designating new exchange locations and denied the father's enforcement petition with prejudice, unanimously affirmed, without costs.

Contrary to the mother's contentions, Family Court properly retained jurisdiction over the father's modification and enforcement petitions because the child moved to Connecticut only a year before the petitions were filed, and he continued to have a significant connection to New York, including monthly visits with the father and the paternal grandmother in the Bronx (see Domestic Relations Law § 76–a[1][a];  Matter of Helmeyer v. Setzer, 173 A.D.3d 740, 742–743, 105 N.Y.S.3d 541 [2d Dept. 2019]).  Accordingly, the court properly exercised jurisdiction over the petitions at issue but declined to exercise continuing exclusive jurisdiction over the matter.

There is a sound and substantial basis for Family Court's determination that the mother's move to Connecticut with the child constituted a change of circumstances warranting modification of the prior order with respect to the father's visitation (see Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186–1187, 926 N.Y.S.2d 310 [2d Dept. 2011], lv denied 17 N.Y.3d 714, 2011 WL 4977130 [2011];  see also Skidelsky v. Skidelsky, 279 A.D.2d 356, 356, 719 N.Y.S.2d 88 [1st Dept. 2001]).  Furthermore, the court's directive that visitation exchanges would begin in Norwalk, Connecticut and end at the paternal grandmother's home in the Bronx is in the child's best interests (see Jeffrey P. v. Alyssa P., 202 A.D.3d 1409, 1412–1413, 164 N.Y.S.3d 265 [3d Dept. 2022];  see also Matter of David V. v. Roseline W., 217 A.D.3d 1112, 1115, 191 N.Y.S.3d 504 [3d Dept. 2023], lv denied 40 N.Y.3d 905, 2023 WL 6885682 [2023]).

The parties’ arguments opposing the order reflect that their primary concern is their own convenience rather than what is in the child's best interests (see Jeffrey P., 202 A.D.3d at 1413, 164 N.Y.S.3d 265).  The father's argument that the court failed to adequately consider the mother's intransigence and noncompliance with its orders is also unavailing, as the court's primary concern is the child's best interests, and its role is not to punish one parent or the other for poor behavior (see Matter of Tropea v. Tropea, 87 N.Y.2d 727, 742, 642 N.Y.S.2d 575, 665 N.E.2d 145 [1996]).

Family Court properly denied the father's enforcement petition, as he failed “to establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the [mother] had actual knowledge of the order's terms, and that [the mother's] willful actions impaired [the father's] rights under the prior order” (Matter of Angelica CC. v. Ronald DD., 214 A.D.3d 1091, 1092, 184 N.Y.S.3d 483 [3d Dept. 2023] [internal quotation marks omitted], lv denied 39 N.Y.3d 915, 2023 WL 3960593 [2023]).  The order stated that the father “may have additional visitation with the child in New York, from Friday at 6:00 p.m. until Sunday at 6:00 p.m., upon 2 weeks’ notice to the mother in writing.”  The mother's apparent refusal to facilitate visitation did not constitute a willful violation of the order, which was permissive not mandatory (see Matter of Hoglund v. Hoglund, 234 A.D.2d 794, 796, 651 N.Y.S.2d 239 [3d Dept. 1996]).