IN RE: BRADY J. S. (2026)

MEMORANDUM AND ORDER

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

Memorandum: Petitioner father commenced this proceeding pursuant to Family Court Act article 6 seeking, inter alia, modification of a prior custody order to award him “sole custody and primary residency” of the subject child and a finding of contempt against respondents on the ground that they violated a prior order of custody. Family Court bifurcated the custody and contempt proceedings. In appeal No. 1, the Attorney for the Child (AFC) and respondents maternal grandparents (grandparents) appeal from an order granting the father and the grandparents joint custody of the child and awarding the father certain periods of residency and “zones of influence.” In appeal No. 2, the grandparents appeal from an order finding them to be in contempt of a prior order, imposing a fine, awarding the father attorney's fees, and directing further proceedings to determine the amount of those fees. In appeal No. 3, the grandparents appeal from an order imposing a $250 fine and awarding the father $39,126.50 for “legal fees.”

This is the continuation of a long-standing custody dispute between the father and the maternal grandparents, who have been before us previously (Matter of Brady J.S. v Darla A.B., 208 AD3d 1023 [4th Dept 2022], lv denied 39 NY3d 904 [2022]). In that prior appeal, we affirmed an order of Family Court (Ruhlmann, J.) that awarded the father, mother, and grandparents joint custody of the child and determined that residency should be shared between the father and the grandparents, “with the child splitting her time equally between the two residences” (id. at 1024). Since that time, however, more disputes have arisen, prompting the father to file the instant petition. We now affirm both the custody order in appeal No. 1 and the contempt order in appeal No. 3.

In appeal No. 1, the grandparents and the AFC contend that the court's determination is not supported by a sound and substantial basis in the record. With regard to the grandparents, even assuming, arguendo, that the grandparents are aggrieved by an order reducing the father's periods of residency and visitation but increasing his zone of influence (see CPLR 5511; Matter of Valenson v Kenyon, 80 AD3d 799, 799 [3d Dept 2011]; see also Matter of Johnson v Johnson, 192 AD3d 1670, 1672 [4th Dept 2021], lv denied 37 NY3d 905 [2021]), we conclude that the grandparents failed to preserve for our review their contention that the existing custody order should have been modified to eliminate entirely the father's custodial and visitation rights inasmuch as they failed to file a cross-petition seeking such relief (see Matter of Kayley E. [James F.], 134 AD3d 1195, 1196-1197 [3d Dept 2015]; Matter of Grant v Terry, 104 AD3d 854, 854 [2d Dept 2013]). “The proper remedy [for the grandparents] would [have been] to present such an option in a new petition, upon which Family Court then could [have] determine[d] its feasibility” (Matter of Anthony MM. v Rena LL., 34 AD3d 1171, 1172 [3d Dept 2006], lv denied 8 NY3d 805 [2007]; see generally Family Ct Act § 651 [b]).

With regard to the AFC's challenge to the court's determination, there is no basis in the record to deprive the father of time with the child as the AFC requests on appeal. We note that the father has never laid a hand on the child or even threatened to do so, and the child has never been harmed in his care. As discussed below, there is ample evidence in the record establishing that the child's refusal to visit the father is the result of a prolonged campaign of alienation waged against him by the grandparents.

The appeal from the nonfinal order in appeal No. 2 must be dismissed (see Family Ct Act § 1112 [a]; see generally Ocasio v Ocasio, 49 AD2d 801, 801 [4th Dept 1975], appeal dismissed 37 NY2d 921 [1975]). We nevertheless address the contentions related to that order inasmuch as the determinations in that order “necessarily affect[ ]” the order in appeal No. 3 and, if reversed, “would entitle the [grandparents] to prevail ․ on that [part of their] appeal” (CPLR 5501 [a] [1]).

With respect to appeal No. 3, we conclude that the court did not err in granting that part of the father's petition seeking to hold the grandparents in contempt under Judiciary Law § 753 and in awarding him attorney's fees under section 773. “A finding of civil contempt must be supported by four elements: (1) a lawful court order expressing an unequivocal mandate; (2) reasonable certainty that the order was disobeyed; (3) knowledge of the court's order by the party in contempt; and (4) prejudice to the right of a party to the litigation” (McCurty v Roberts, 227 AD3d 1469, 1470 [4th Dept 2024] [internal quotation marks omitted]; see El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). The party seeking an order of contempt must establish those elements by clear and convincing evidence (see McCurty, 227 AD3d at 1470; see also Matter of Claridge v Hull, 239 AD3d 1316, 1317 [4th Dept 2025]). The matter is addressed to the sound discretion of the court (see Matter of Jeanty v Utica Police Dept., 217 AD3d 1545, 1546 [4th Dept 2023]; Burns v Grandjean, 210 AD3d 1467, 1474 [4th Dept 2022]), and the court's determination should not be disturbed absent an abuse of discretion (see Matter of McRae v Brown, 211 AD3d 1523, 1523 [4th Dept 2022]; see also Bellavia v King, 239 AD3d 1243, 1244 [4th Dept 2025]).

Here, the grandparents contend that there was no clear and unequivocal mandate in the prior order that they allegedly violated. They also contend that they cannot be held responsible for the child's refusal to visit the father. We note that, although the AFC filed a brief attempting to challenge the order in appeal No. 3, the AFC did not file a notice of appeal from that order and, as a result, any contentions that the AFC raises beyond those raised by the grandparents (see Matter of Noble v Gigon, 165 AD3d 1640, 1641 [4th Dept 2018], lv denied 33 NY3d 902 [2019]) are “ ‘beyond our review’ ” (Matter of Carroll v Chugg, 141 AD3d 1106, 1106 [4th Dept 2016]; see also Matter of Baxter v Borden, 122 AD3d 1417, 1418-1419 [4th Dept 2014], lv denied 24 NY3d 915 [2015]).

In the prior order, the father was awarded specific and unequivocal periods of residency. There is no dispute that he has not had such periods of residency for some time. The child, who has almost reached the age of majority, refuses to comply. Generally, where “the purported violations of the prior order were the result of the child[ ]’s refusal to comply with the order and not the result of any action taken by the [other party],” we have upheld a court's determination that there was no contempt (Matter of Seeley-Sick v Allison, 236 AD3d 1478, 1478-1479 [4th Dept 2025]; cf. Burns, 210 AD3d at 1474-1475).

In this case, it remains clear that, for over a decade, the grandparents have mounted a campaign to interfere with the father's relationship with the child, and we conclude that the child's refusal to spend time with her father is the result of that campaign of alienation (see e.g. Matter of Michelle L. v Steven M., 227 AD3d 1159, 1164 [3d Dept 2024]; Matter of Carl KK. v Michelle JJ., 175 AD3d 1627, 1628-1629 [3d Dept 2019]; Labanowski v Labanowski, 4 AD3d 690, 694 [3d Dept 2004]). Where, as here, it is determined that the child's refusal to visit is caused by one party's “ ‘ongoing and relentless alienation to which the child is subjected’ ” (Vernon v Vernon, 296 AD2d 186, 189 [1st Dept 2002], affd 100 NY2d 960 [2003]) a finding of contempt for violation of access and visitation provisions may be supported (see id. at 193). We thus conclude that the court did not abuse its discretion in finding the grandparents in contempt and ordering that they pay the attorney's fees to the father (see generally Judiciary Law § 773; Claridge, 239 AD3d at 1317).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court