IN RE: Devon REID (2025)

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Queens County (Joan L. Piccirillo, J.), dated November 29, 2023.  The order, insofar as appealed from, after a hearing, granted the father's petition for sole legal and physical custody of the parties’ children, denied the mother's petition for sole legal custody of the children, directed that the mother's parental access with the children be conducted virtually and supervised, upon the consent of the children, and denied the mother's motion, inter alia, to hold the father in contempt for violating an order of the same court dated July 25, 2022.

ORDERED that the order dated November 29, 2023, is affirmed insofar as appealed from, without costs or disbursements.

The parties are the parents of twin boys, born in January 2010, who have resided with the father since 2018.  The father filed a petition for sole legal and physical custody of the children, and the mother field a petition for sole legal custody of the children.  The mother also moved, among other things, to hold the father in contempt for violating an order dated July 25, 2022, which, inter alia, appointed a social worker to observe and evaluate the mother's supervised parental access.  After a hearing, the Family Court, among other things, granted the father's petition for sole legal and physical custody of the children, denied the mother's petition, directed that the mother's parental access be conducted virtually and supervised, upon the consent of the children, and denied the mother's motion, inter alia, to hold the father in contempt for violating the order dated July 25, 2022.  The mother appeals.

“Inasmuch as a court's custody determination is dependent in large part upon its assessment of the witnesses’ credibility and upon the character, temperament, and sincerity of the parents, the court's exercise of its discretion will not be disturbed if supported by a sound and substantial basis in the record” (Gillespy v. Ceus, 200 A.D.3d 1033, 1034, 155 N.Y.S.3d 812).  Here, the Family Court's determination that an award of sole legal and physical custody of the children to the father was, under the totality of the circumstances, in the best interests of the children has a sound and substantial basis in the record and will not be disturbed on appeal (see Matter of Turcios v. Cordero, 173 A.D.3d 1048, 1049, 100 N.Y.S.3d 569).

The determination of parental access also is within the sound discretion of the court based upon the best interests of the children (see Matter of Lane v. Lane, 68 A.D.3d 995, 997, 892 N.Y.S.2d 130) and should not be set aside unless it lacks a sound and substantial basis in the record (see Reilly v. Hager–Reilly, 166 A.D.3d 825, 827, 88 N.Y.S.3d 83).  Here, the evidence demonstrated that the mother lacked insight into her own needs and the needs of the children and that therapeutic supervised visits between the mother and the children proved unsuccessful.  Consequently, under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260), the Family Court's determination that the mother's parental access be conducted virtually and supervised, and conditioning the virtual access on the children's consent, is supported by a sound and substantial basis in the record (cf.  Matter of Mondschein v. Mondschein, 175 A.D.3d 686, 687–688, 108 N.Y.S.3d 461).

Contrary to the mother's contentions, the Family Court providently exercised its discretion under the circumstances of this case in declining to direct a forensic evaluation (see Matter of Rhodie v. Nathan, 67 A.D.3d 687, 888 N.Y.S.2d 159) or to conduct an in camera interview with the children (see Matter of Desroches v. Desroches, 54 A.D.3d 1035, 1036, 864 N.Y.S.2d 551).

Contrary to the mother's further contention, the Family Court properly denied her motion, inter alia, to hold the father in contempt for violating an order dated July 25, 2022, which, among other things, appointed a social worker to observe and evaluate the mother's supervised parental access.  An application to punish a party for civil contempt “is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence” (Matter of Hughes v. Kameneva, 96 A.D.3d 845, 846, 946 N.Y.S.2d 211).  “The movant must establish that:  (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct” (Savel v. Savel, 153 A.D.3d 872, 873, 61 N.Y.S.3d 97).  Here, the mother failed to establish, by clear and convincing evidence, that the father disobeyed the order dated July 25, 2022.

The mother's remaining contentions are unpreserved for appellate review and, in any event, without merit.

BARROS, J.P., DOWLING, VENTURA and MCCORMACK, JJ., concur.