IN RE: Frederick A. MYERS (2025)

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Dutchess County (Denise M. Watson, J.), dated October 27, 2023.  The order, after a hearing, granted the father's petition to modify an order of the same court dated December 20, 2017, so as to award him primary residential custody of the parties’ child, directed that the mother have parental access with the parties’ child as agreed to by the parties and taking into consideration the wishes of the child, and restricted the mother's partner from being present during the mother's parental access with the parties’ child.

ORDERED that the order dated October 27, 2023, is reversed, on the facts and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Family Court, Dutchess County, for further proceedings not inconsistent herewith.

The parties are the parents of one child, who was born in 2010.  In an order dated December 20, 2017 (hereinafter the December 2017 order), made on consent of the parties, the Family Court, inter alia, awarded the mother and the father joint legal and residential custody of the child, with the child alternating every week between the parties’ respective residences.

In March 2023, the father filed a petition to modify the December 2017 order so as to award him primary residential custody of the child, with parental access to the mother on the condition, among other things, that the mother's partner not be present during the mother's parental access with the child.  In an order dated October 27, 2023, after a hearing, the Family Court granted the father's petition to modify the December 2017 order, so as to award him primary residential custody of the child, directed that the mother have parental access with the child as agreed to by the parties and taking into consideration the wishes of the child, and restricted the mother's partner from being present during the mother's parental access with the child.  The mother appeals.

“In adjudicating custody and parental access rights, the paramount concern is the best interests of the child, which requires an evaluation of the ‘totality of [the] circumstances’ ” (Matter of Magana v. Delph, 195 A.D.3d 720, 721, 145 N.Y.S.3d 360 [citation omitted], quoting Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765;  see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260).  Here, new developments since the issuance of the order dated October 27, 2023, have been brought to this Court's attention, including, inter alia, that the child has expressed that the restriction that the mother's partner not be present during the mother's parental access with the child has impacted the child's ability to spend time with the mother and the child's younger siblings.  As the Court of Appeals recognized, changed circumstances may have particular significance in child custody matters and may render the record on appeal insufficient to review whether a child custody determination is still in the best interests of the child (see Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122;  Matter of Martynchuk v. Vasylkovska, 223 A.D.3d 819, 820, 204 N.Y.S.3d 180).  In light of the alleged new developments brought to this Court's attention, the record is no longer sufficient to review whether the Family Court's determination regarding custody and parental access is in the best interests of the child (see Haddad v. Sassoon, 237 A.D.3d 673, 230 N.Y.S.3d 667;  Matter of Magana v. Delph, 195 A.D.3d at 721–722, 145 N.Y.S.3d 360).

Accordingly, we reverse the order dated October 27, 2023, and remit the matter to the Family Court, Dutchess County, for further proceedings not inconsistent herewith.  In so doing, we express no opinion as to the appropriate determination (see Matter of Baker v. James, 210 A.D.3d 676, 678, 176 N.Y.S.3d 735;  Matter of Baptiste v. Gregoire, 140 A.D.3d 746, 748, 33 N.Y.S.3d 342).

DECISION & ORDER ON MOTION

Motion by the attorney for the child, inter alia, to strike stated portions of the mother's reply brief on the ground that they refer to matter dehors the record.  By decision and order on motion of this Court dated April 14, 2025, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeal, it is

ORDERED that the motion is denied.

MILLER, J.P., DOWLING, WAN and HOM, JJ., concur.