IN RE: KATHY C. (2018)

Order, Family Court, New York County (Jane Pearl, J.), entered on or about December 19, 2016, which denied respondent father's motion to vacate his default in a proceeding which, after a hearing, granted petitioner maternal grandmother's application for modification of a prior custody and visitation order, granted her sole legal and physical custody of the subject child, and permitted her to relocate to South Carolina with the child, unanimously affirmed, without costs.

The determination that the father failed to substantiate his claims of a reasonable excuse and a meritorious defense are supported by the record.  The father's incarceration did not constitute excusable default (see Matter of Commissioner of Social Servs. v. Kastriot D., 101 A.D.3d 574, 956 N.Y.S.2d 52 [1st Dept. 2012], lv denied 21 N.Y.3d 853, 2013 WL 1800048 [2013] ).  Further, he failed to seek vacatur until approximately six months after his release from incarceration (see Matter of Christopher James A. [Anne Elizabeth Pierre L.], 90 A.D.3d 515, 935 N.Y.S.2d 16 [1st Dept. 2011], lv denied 18 N.Y.3d 918, 941 N.Y.S.2d 551, 964 N.E.2d 1019 [2012] ).

The father also failed to present evidence of a meritorious defense to the petition, and the maternal grandmother demonstrated a change in circumstances since the prior custody order was entered and that her proposed modification would be in the child's best interest (see Matter of Johnny Eugene P. v. Michelle K.P., 140 A.D.3d 624, 33 N.Y.S.3d 704 [1st Dept. 2016];  Matter of Manuel John M. v. Lisa Rossi M., 125 A.D.3d 407, 408, 3 N.Y.S.3d 14 [1st Dept. 2015], lv denied 25 N.Y.3d 904, 2015 WL 2032079 [2015] ).

Contrary to the father's argument, even assuming at a rehearing he would proffer evidence regarding a strong bond between him and the child, the fact that he had relinquished parenting responsibilities for the entirety of the child's life, coupled with his history of significant domestic violence, would nonetheless have merited a finding of extraordinary circumstances (see Matter of Sharon B. v. Tiffany P., 143 A.D.3d 573, 39 N.Y.S.3d 440 [1st Dept. 2016] ).  Following the finding of extraordinary circumstances, the court properly found that it was in the child's best interest to award sole custody to the maternal grandmother and grant her permission to relocate with the child to South Carolina (see Matter of Christopher E.C. v. Ivana K.S., 143 A.D.3d 420, 38 N.Y.S.3d 181 [1st Dept. 2016] ).