IN RE: KAYO I. (2019)

Order, Family Court, New York County (Douglas E. Hoffman, J.), entered on or about October 17, 2016, which, after a hearing, modified the parties' 2010 stipulation to award petitioner mother (petitioner) sole legal custody of the subject child, to order supervised visitation for respondent father, and to permit petitioner to travel to Japan with the child without respondent's consent, unanimously affirmed, without costs.

The determination that an award of sole custody to petitioner is in the best interests of the child has a sound and substantial basis in the record, which shows that, under the circumstances, joint legal custody is no longer viable (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982];  Matter of Raymond A. v. Lisa M.H., 115 A.D.3d 553, 982 N.Y.S.2d 115 [1st Dept. 2014] ).  In reaching its determination, the court properly considered respondent's use of physical discipline (see Matter of Joseph R. [Jasmine M.G.], 137 A.D.3d 420, 26 N.Y.S.3d 272 [1st Dept. 2016] ), in violation of court orders, and the child's resulting reluctance to be alone with his father (see Matter of Roelofsen v. Tiberie, 64 A.D.3d 603, 883 N.Y.S.2d 543 [2d Dept. 2009] ).  To the extent respondent claims that petitioner interfered in his relationship with the child, petitioner was acting on the child's behalf (see e.g. Matter of Jillian EE. v. Kane FF., 165 A.D.3d 1407, 86 N.Y.S.3d 262 [3d Dept. 2018] ).

In light of the foregoing, the court properly ordered that respondent's visitation be supervised (see Matter of Carl T. v. Yajaira A.C., 95 A.D.3d 640, 642, 945 N.Y.S.2d 20 [1st Dept. 2012] ), and recommended family therapy.

The court providently exercised its discretion in permitting petitioner, the custodial parent, to travel to Japan with the child for one month each year, upon 6 weeks notice to the father but without obtaining respondent's prior consent (see Matter of Li Ka Ye v. Wai Lam Sin, 138 A.D.3d 994, 30 N.Y.S.3d 281 [2d Dept. 2016];  Matter of Noella Lum B. v. Khristopher T.R., 123 A.D.3d 531, 999 N.Y.S.2d 35 [1st Dept. 2014] ).  The provision of the 2010 stipulation that requires respondent's consent is inconsistent with petitioner's having sole legal custody.  Moreover, there is no evidence to support respondent's claim that petitioner intends to abscond to Japan with the child.