KENDRA v. JARED (2022)

Order, Family Court, Bronx County (Jennifer S. Burtt, Ref.), entered on or about July 13, 2020, which, after a trial, insofar as appealed from as limited by the briefs, awarded sole physical and legal custody of the subject child to petitioner mother and awarded visitation to respondent father, unanimously affirmed, without costs.

The award of sole custody to the mother was a provident exercise of the court's discretion.  Initially, the court found the mother's testimony credible and the father's far less credible, and those findings are entitled to deference (see Deanna V. v. Michael C., 179 A.D.3d 445, 446, 117 N.Y.S.3d 189 [1st Dept. 2020]).  The record also shows that the mother, who has cared for the child his entire life, has capably made all decisions concerning him, and that he has thrived under her care.  In contrast, the record shows that the father has been uninvolved in the child's life (see Matter of Adriano D. v. Yolanda A., 94 A.D.3d 448, 449, 941 N.Y.S.2d 150 [1st Dept. 2012]).  The father does not adequately address that, notwithstanding his alleged concerns about exclusion from the child's life, he did not seek judicial relief until 2018 (see Matter of Charmaine L. v. Kenneth D., 76 A.D.3d 910, 910, 908 N.Y.S.2d 41 [1st Dept. 2010], lv denied 16 N.Y.3d 702, 2011 WL 135343 [2011]).  In any event, the court addressed the issue by, among other things, ordering the mother to notify him of major decisions regarding the child's education, medical care and treatment, need for therapy or counseling, and religious training.

Similarly, the court properly found an award of joint custody was not in the best interests of the child, given the nature of the parties’ relationship (see Braiman v. Braiman, 44 N.Y.2d 584, 590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 [1978];  Lubit v. Lubit, 65 A.D.3d 954, 955, 885 N.Y.S.2d 492 [1st Dept. 2009], lv denied 13 N.Y.3d 716, 2010 WL 118203 [2010];  cert denied, 560 U.S. 940, 130 S.Ct. 3362, 176 L.Ed.2d 1247 [2010]).  The record shows that the parents cannot agree on issues concerning the child, as they cannot communicate or share information about the child in a productive way, and the father becomes aggressive when he disagrees with the mother (see Deanna V., 179 A.D.3d at 446–447, 117 N.Y.S.3d 189).

The visitation schedule was also a provident exercise of the court's discretion (see Christopher H. v. Taiesha R., 166 A.D.3d 548, 548, 88 N.Y.S.3d 181 [1st Dept. 2018]).  More parenting time with the father would not be in the child's best interests (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982];  Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 94, 447 N.Y.S.2d 893, 432 N.E.2d 765 [1982]), nor do the father's arguments adequately confront the sound bases for the court's imposition of stringent limitations on his access, including the child's fear of the father and the father's physical altercations with the mother.

We reject the father's arguments that Family Court should have issued an order gradually expanding his parenting time, as such an order would effectuate a modification of visitation based on the mere passage of time, rather than on the requisite change of circumstances (Christopher H., 166 A.D.3d at 548, 88 N.Y.S.3d 181).  Nor does the father show that such an order would be in the best interests of the child, especially given that the child consistently stated that he wished to spend less time with the father – a preference that the court properly took into account (see id.;  Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408–409, 985 N.Y.S.2d 28 [1st Dept. 2014]).

We have considered the father's remaining arguments and find them unavailing.