EMIKO v. CHRISTOPHER (2021)

Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered on or about January 11, 2018, which, after a custody trial, denied plaintiff mother's request to relocate with the subject child, awarded defendant father sole legal and physical custody, and set a parental access schedule, unanimously affirmed, without costs.

The determination that an award of sole legal and physical custody to defendant would serve the best interests of the child has a sound and substantial basis in the record (see Matter of David J.B. v. Monique H., 52 A.D.3d 414, 861 N.Y.S.2d 330 [1st Dept. 2008]).  The child had lived primarily with defendant since 2015, and defendant had taken care of the child's physical, emotional, educational, material, and medical needs (see Matter of Deanna V. v. Michael C., 179 A.D.3d 445, 446, 117 N.Y.S.3d 189 [1st Dept. 2020];  see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 172–74, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]).  Plaintiff had violated court orders, refused to pay defendant temporary child support or contribute to the child's add-on expenses, and failed to arrange visitation with the child in the five months preceding the trial.  Plaintiff also surreptitiously took the child to see a therapist in California despite the child's ongoing relationship with a therapist in New York, and the visit resulted in an investigation by the Administration for Children's Services of a complaint alleging abuse against defendant that was deemed unfounded.  The record also supports the court's consideration of the possibility of parental alienation by plaintiff as an additional factor in favor of granting custody to defendant (see Matter of Tyrone G. v. Lucretia S., 4 A.D.3d 205, 771 N.Y.S.2d 645 [1st Dept. 2004]).

The court properly denied plaintiff's request to relocate the child to California since she failed to demonstrate that such a move would be in the child's best interests and provide a benefit sufficient to outweigh the detrimental impact on the child of taking him away from the only home he had ever known, his school, his therapist, and defendant, his primary caregiver.

To the extent plaintiff seeks greater parental access to the child, we decline to disturb the access schedule ordered by the court, which has a sound and substantial basis in the record (see Matter of Ronald C. v. Sherry B., 144 A.D.3d 545, 546, 42 N.Y.S.3d 2 [1st Dept. 2016], lv dismissed 29 N.Y.3d 965, 51 N.Y.S.3d 498, 73 N.E.3d 855 [2017]).  At the end of the trial the court expressed its willingness to entertain an application to modify plaintiff's access, after six supervised sessions, depending on her comportment, which remedy remains available to the mother.

Plaintiff's contention of alleged judicial bias is unpreserved and in any event unavailing.