IN RE: Jeremiah A. NICKERSON (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Respondent mother appeals from an order, inter alia, awarding petitioner father sole legal and physical custody of the subject child.  We reject the contention of the mother that Family Court abused its discretion in refusing to permit her to testify by telephone from another state during the hearing on the father's custody petition.  Under the circumstances of this case, in which the mother absconded with the child to Georgia without the father's knowledge or permission, we find no abuse of discretion (see Matter of Jaydalee P. [Codilee R.], 156 A.D.3d 1477, 1477–1478, 67 N.Y.S.3d 371 [4th Dept. 2017], lv denied 31 N.Y.3d 904, 2018 WL 1957464 [2018] ).  Contrary to the mother's further contention, there is a sound and substantial basis in the record supporting the court's determination limiting her to supervised visitation in the county of the father's residence (see Matter of Shaffer v. Woodworth, 175 A.D.3d 1803, 1804, 109 N.Y.S.3d 795 [4th Dept. 2019];  Matter of Campbell v. January, 114 A.D.3d 1176, 1177, 979 N.Y.S.2d 740 [4th Dept. 2014], lv denied 23 N.Y.3d 902, 2014 WL 1810582 [2014] ).

We reject the mother's contention that the court erred in awarding custody to the father in the absence of an order of filiation.  Under the circumstances here, the court properly determined that the mother was judicially estopped from denying the father's paternity (see Matter of Mukuralinda v. Kingombe, 100 A.D.3d 1431, 1432, 954 N.Y.S.2d 316 [4th Dept. 2012] ).

The mother's contention that the child was deprived of effective assistance of counsel because the Attorney for the Child improperly substituted her judgment for the wishes of the child is not preserved for our review (see Matter of Audreanna VV. v. Nancy WW., 158 A.D.3d 1007, 1011, 71 N.Y.S.3d 683 [3d Dept. 2018];  Matter of Emmanuel J. [Maximus L.], 149 A.D.3d 1292, 1297, 52 N.Y.S.3d 154 [3d Dept. 2017] ) and, in any event, it is without merit.  Finally, the mother's remaining contention is likewise not preserved for our review (see generally Ciesinski v. Town of Aurora, 202 A.D.2d 984, 985, 609 N.Y.S.2d 745 [4th Dept. 1994] ).