JOHNSON v. Scott A. Otis, Esq., Attorney for the Child, Appellant. (Appeal No. 2.) (2022)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order insofar as appealed from is unanimously reversed on the law without costs, the amended petition is reinstated, the amended petition is granted, and the matter is remitted to Family Court, Jefferson County, for further proceedings in accordance with the following memorandum: In these child custody and visitation proceedings, petitioner father and the Attorney for the Child (AFC) appeal in appeal No. 1 from an order dismissing the father's petition against respondent mother alleging a violation of a prior order of joint custody and his amended petition seeking a modification of the custody order by awarding him sole custody of the parties’ child and granting visitation to the mother. In appeal No. 2, the father and the AFC appeal from a subsequent order that, inter alia, clarified that the order in appeal No. 1 applied nunc pro tunc to both petitions. As limited by their briefs, they appeal from the order in appeal No. 2 insofar as it dismissed the father's amended petition on the ground that the father failed to establish a change in circumstances.

We note at the outset that the appeals from the order in appeal No. 1 must be dismissed inasmuch as that order was superseded by the order in appeal No. 2 (see Matter of Tuttle v. Mateo [Appeal No. 3], 121 A.D.3d 1602, 1603, 993 N.Y.S.2d 863 [4th Dept. 2014]; Matter of Eric D. [Appeal No. 1], 162 A.D.2d 1051, 1051, 559 N.Y.S.2d 156 [4th Dept. 1990]). We further note that the mother's contentions concerning alleged evidentiary errors and ineffective assistance of counsel at the hearing are not properly before us inasmuch as the mother failed to take a timely appeal from either order (see Matter of Saunders v. Hamilton, 75 A.D.3d 1172, 1173, 904 N.Y.S.2d 856 [4th Dept. 2010], lv denied 15 N.Y.3d 713, 2010 WL 4183860 [2010]; see generally Matter of Jasper QQ., 64 A.D.3d 1017, 1019-1020, 883 N.Y.S.2d 344 [3d Dept. 2009], lv denied 13 N.Y.3d 706, 2009 WL 2998109 [2009]). In any event, the mother was not aggrieved by the orders inasmuch as they dismissed the father's petitions (see CPLR 5511; Matter of Tariq S. v. Ashlee B., 177 A.D.3d 1385, 1385, 110 N.Y.S.3d 611 [4th Dept. 2019]; Saunders, 75 A.D.3d at 1173, 904 N.Y.S.2d 856).

With respect to the merits, “[a] party seeking to modify an existing custody arrangement must demonstrate a change in circumstances sufficient to warrant an inquiry into whether a change in custody is in the best interests of the child[ ]” (Matter of Peay v. Peay, 156 A.D.3d 1358, 1360, 67 N.Y.S.3d 751 [4th Dept. 2017]; see Matter of Guillermo v. Agramonte, 137 A.D.3d 1767, 1768, 29 N.Y.S.3d 720 [4th Dept. 2016]; Matter of Foster v. Foster, 128 A.D.3d 1381, 1381, 7 N.Y.S.3d 790 [4th Dept. 2015], lv denied 26 N.Y.3d 901, 2015 WL 5123425 [2015]). Although, as a general rule, the custody determination of the trial court is entitled to great deference (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982]), “[s]uch deference is not warranted ․ where the custody determination lacks a sound and substantial basis in the record” (Fox v. Fox, 177 A.D.2d 209, 211-212, 582 N.Y.S.2d 863 [1992]). Moreover, “[o]ur authority in determinations of custody is as broad as that of Family Court” (Matter of Bryan K.B. v. Destiny S.B., 43 A.D.3d 1448, 1450, 844 N.Y.S.2d 535 [4th Dept. 2007]; see Matter of Louise E.S. v. W. Stephen S., 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091 [1985]).

We agree with the father and the AFC that the father met his burden of establishing a change in circumstances. It is well settled that “ ‘the continued deterioration of the parties’ relationship is a significant change in circumstances justifying a change in custody’ ” (Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1392, 24 N.Y.S.3d 834 [4th Dept. 2016]; see Matter of Gaudette v. Gaudette, 262 A.D.2d 804, 805, 691 N.Y.S.2d 681 [3d Dept. 1999], lv denied 94 N.Y.2d 790, 700 N.Y.S.2d 421, 722 N.E.2d 501 [1999]). Here, the court had previously awarded joint custody to the parties on the basis that communications between them had “improved and the two were working together more than ever before, the results of which were positive for [the subject child].” However, the evidence at the hearing established that, after the initial custody award was entered, the parties reverted to “ ‘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 Keller v. Keller, 176 A.D.3d 1573, 1574, 107 N.Y.S.3d 912 [4th Dept. 2019], lv denied 35 N.Y.3d 905, 2020 WL 3056285 [2020]; see Matter of Cooley v. Roloson, 201 A.D.3d 1299, 1300, 158 N.Y.S.3d 703 [4th Dept. 2022]; see also Leonard v. Leonard, 109 A.D.3d 126, 128, 968 N.Y.S.2d 762 [4th Dept. 2013]). Thus, on this record, we conclude that there has been a sufficient change in circumstances warranting an inquiry into whether the best interests of the child would be served by modifying the existing custody arrangement.

Inasmuch as the record is sufficient for this Court to make a best interests determination, we will do so “in the interests of judicial economy and the well-being of the child” (Bryan K.B., 43 A.D.3d at 1450, 844 N.Y.S.2d 535; see Matter of Cole v. Nofri, 107 A.D.3d 1510, 1512, 967 N.Y.S.2d 552 [4th Dept. 2013], appeal dismissed and lv denied 22 N.Y.3d 1083, 981 N.Y.S.2d 666, 4 N.E.3d 967 [2014]). After reviewing the relevant factors (see generally Eschbach, 56 N.Y.2d at 171-174, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Marino v. Marino, 90 A.D.3d 1694, 1695, 935 N.Y.S.2d 818 [4th Dept. 2011]), we conclude that it is in the child's best interests to award the father sole custody. Although the parties have shared alternating week custody since the entry of the prior custody order, the evidence at the hearing established that the father “provided a more stable environment for the child and was better able to nurture the child” (Matter of Unczur v. Welch, 159 A.D.3d 1405, 1406, 72 N.Y.S.3d 680 [4th Dept. 2018], lv denied 31 N.Y.3d 909, 2018 WL 2924938 [2018]). The evidence further established that the mother made a concerted effort to interfere with the father's contact with the child by, inter alia, disparaging him to educational and medical professionals, which raises a strong probability that the mother “ ‘is unfit to act as custodial parent’ ” (Matter of Fowler v. Rothman, 198 A.D.3d 1374, 1375, 156 N.Y.S.3d 618 [4th Dept. 2021], lv dismissed 38 N.Y.3d 995, 168 N.Y.S.3d 2, 188 N.E.3d 128 [2022]) and warrants the grant of sole custody to the father. We therefore reverse the order in appeal No. 2 insofar as appealed from and grant the amended petition by awarding the father sole custody of the child and visitation to the mother, and we remit the matter to Family Court to fashion an appropriate visitation schedule.