IN RE: E.V. (2026)

Order, Family Court, New York County (Maria Arias, J.), entered on or about June 24, 2025, which, after a fact-finding hearing, denied that portion of petitioner father's petition to modify the custody order seeking sole legal and physical custody of the subject child, granted the petition to the extent of modifying the parenting access schedule, and directing the parents to retain a parenting coordinator before seeking court intervention, granted the father's application for a contempt finding, holding the mother in contempt of the March 20, 2017 custody order and imposing a $20,500 fine, and denied the father's request for counsel fees, unanimously modified, on the law and the facts, to the extent of reducing the contempt fine to $250, payable to the Lawyers' Fund for Client Protection, remanding the matter to Family Court to determine the father's reasonable counsel fees and expenses incurred in connection with the contempt proceeding, and otherwise affirmed, without costs.

Family Court's determination that the father demonstrated a significant change in circumstances due to the mother's interference with his parental access and its award of 81 make-up days is supported by the record (see e.g. Matter of Lawrence C. v. Anthea P., 79 A.D.3d 577, 579, 912 N.Y.S.2d 216 [1st Dept. 2010] ).  We also find that the court's determination, despite finding a change in circumstances, to deny the father's petition for custody modification because it was in the child's best interests to remain in the mother's primary custody, is supported by a sound and substantial basis in the record (see Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 409, 985 N.Y.S.2d 28 [1st Dept. 2014] ).  The mother has always been the child's primary caretaker, and nothing in the record warrants disturbing that stable custody arrangement, particularly in light of the court's finding that a change of physical custody would be unlikely to reduce conflict between the parents.  Moreover, even egregious conduct must be viewed within the context of the child's best interests (see id.).  Here, the child has been thriving in the mother's care and has expressed having a strong bond with both parents.  In asserting that he should have been awarded primary custody, the father cannot identify any particular decision made by the mother with which he disagrees that would demonstrate her inability to act in the child's best interests.

The father established all of the requisite elements for holding the mother in contempt:  that she violated a clear and unequivocal order of the Family Court, of which she had knowledge, and that her violation prejudiced the father's rights (see El–Dehdan v. El–Dehdan, 26 N.Y.3d 19, 29, 19 N.Y.S.3d 475, 41 N.E.3d 340 [2015];  see also Matter of Hilary C. v. Michael K., 203 A.D.3d 486, 487, 160 N.Y.S.3d 875 [1st Dept. 2022], lv dismissed 38 N.Y.3d 1020, 168 N.Y.S.3d 714, 188 N.E.3d 1003 [2022] ).  However, Family Court made no finding that either the father or the child sustained any actual loss or injury as a result of the mother's noncompliance.  As a result, the $20,500 fine, calculated at $250 for each alleged violation, was improper.  The appropriate remedy under Judiciary Law § 773 is a fine of $250, plus the father's costs and expenses.

Family Court erred in denying the father's application for counsel fees incurred in prosecuting the contempt proceeding, as these fees are expressly authorized by Judiciary Law § 773 (see Gottlieb v. Gottlieb, 137 A.D.3d 614, 618, 28 N.Y.S.3d 37 [1st Dept. 2016] ).  Family Court's finding that the mother violated the custody order establishes the predicate for an award of counsel fees under section 773.

We have reviewed the remaining contentions and find them unavailing.