IN RE: DEVON YY. (2026)

MEMORANDUM AND ORDER

Appeal from an order of the Family Court of Schenectady County (Margaret Tabak, Referee), entered April 18, 2025, which, among other things, granted petitioner's application, in proceeding No. 5 pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Devon YY. (hereinafter the mother) and James ZZ. (hereinafter the father) are the parents of the subject child (born in 2017).  Pursuant to an April 2023 order entered upon consent, the parents shared joint legal custody of the child, with the father having primary physical custody subject to the mother's scheduled supervised parenting time.¹  Subsequently, between September 2023 and October 2024, the parents filed several competing custody modification and violation petitions.  Of note, in September 2023, the mother sought to remove the requirement of supervised visitation and for residential custody of the child.  Later, in April 2024, the mother filed a family offense petition alleging, as is pertinent here, that the father had committed conduct constituting assault and/or reckless endangerment against the child.  In the interim, the father filed an enforcement petition against the mother upon her failure to timely return the child following visitation, as well as based upon other concerns related to the mother's unilateral enrollment of the child in counseling services outside of her regular provider.  Although the record reflects that the father ultimately withdrew his enforcement petition following the mother's later return of the child, in June 2024, Family Court (Polk, J.) issued a temporary order directing, among other things, that the child continue counseling only with her established provider.

The parties' acrimonious relationship continued and, in September 2024, the mother filed a violation petition alleging that the father had refused her visitation.  The father in turn filed a modification petition seeking sole legal and physical custody based upon the mother having repeatedly withheld the child following visitation and her attempts to enroll the child in a Long Island school district, in addition to other conduct in violation of the consent order.  Various proceedings ensued and, in October 2024, Family Court (Tabak, Referee) issued a temporary order of custody maintaining the custodial agreement set forth in the April 2023 order, but further restricting the mother's supervised visitation.  Following a fact-finding hearing and a Lincoln hearing, the court partially granted the father's modification petition and dismissed the mother's petitions, awarding the parents shared legal custody of the child, with final decision-making authority to the father, and primary physical custody to the father subject to the mother's supervised visitation on alternating weekends.  The mother appeals.

“A party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order” (Matter of Ashley UU. v. Ned VV., 235 AD3d 1200, 1201 [3d Dept 2025] [internal quotation marks and citations omitted];  see Matter of Virginia OO. v. Alan PP., 214 AD3d 1045, 1046 [3d Dept 2023] ).  At the outset, we agree that the parties' inability to cooperate regarding the child and the mother's various unilateral attempts to makes changes to the child's healthcare and education, compounded by her repeated failures to timely return the child following visitation, were sufficient to establish the requisite change in circumstances.  Accordingly, Family Court properly proceeded to a determination of the child's best interests (see Matter of Michael M. v. Makiko M., 238 AD3d 1304, 1306 [3d Dept 2025];  Matter of Debra YY. v. Michael XX., 234 AD3d 1021, 1022 [3d Dept 2025] ).

In making a best interests determination, “courts must consider a variety of factors, including the quality of the parents' respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well-being” (Matter of Michael M. v. Makiko M., 238 AD3d at 1306 [internal quotations marks and citations omitted];  see Matter of Michelle EE. v. John EE., 235 AD3d 1121, 1123 [3d Dept 2025] ).  As to visitation, “Family Court has the discretion to impose supervised visitation if it determines that unsupervised visitation would be detrimental to the children's safety because the parent is either unable or unwilling to discharge his or her parental responsibility properly” (Matter of Omar UU. v. Courteney UU., 247 AD3d 1333, 1334 [3d Dept 2026] [internal quotation marks and citations omitted] ).  “A custodial determination depends to a great extent upon an assessment of the testimony, character and sincerity of the parties and, for this reason, it is well established that, given its superior position to observe the witnesses, deference is ordinarily accorded to Family Court's findings in this respect” (Matter of Ashley UU. v. Ned VV., 235 AD3d at 1201 [internal quotation marks, brackets and citations omitted] ), and this Court “will not disturb its custodial determination if supported by a sound and substantial basis in the record” (Matter of Kyle I. v. Kandice K., 232 AD3d 1074, 1076 [3d Dept 2024] [internal quotation marks and citations omitted];  see Matter of Matthew L. v. Sierra N., 229 AD3d 866, 868 [3d Dept 2024], lv denied 42 NY3d 907 [2024] ).

The father testified that he first received physical custody of the child following the mother's arrest for felony burglary, and that the mother's supervised visitation was initiated due to her various mental health and substance abuse related challenges that were revealed following her arrest.  Since the prior order, the father testified that the mother had absconded with the child three times over the course of one year and that the maternal grandmother, serving as the court-appointed visitation supervisor, failed to intervene.  The mother's conduct resulted in the child missing significant school time and, to the extent that the mother's refusals to return the child were based upon allegations against the father, the record reflects that any related Child Protective Services (hereinafter CPS) investigations were unfounded.  According to the father, during one incident in which the mother failed to return the child, the father discovered that the mother had attempted to enroll the child in a Long Island school district.  Having thereafter informed the school district of the terms of the parties' April 2023 order – the mother having apparently provided an outdated copy of the child's birth certificate that did not include the father – the father was permitted to retrieve the child from the school.  The father described the child to be, at that time, highly emotionally dysregulated and physically combative.  In response, the father secured an emergency virtual appointment with the child's regular therapist but, despite his efforts, the mother did not respond to his invitation to participate in that appointment.

The father further expressed his overall concern regarding the mother's influence on the child and her attempts to have the child disregard his parental authority, alleging that the child struggles to “settle in” and becomes rude and disrespectful following visitation with the mother.  In particular, the father noted that the mother had once obtained a separate therapeutic resource for the child in Long Island, where she brought the child for several months before informing the father.  She had also allegedly assisted the child in quitting a certain extracurricular activity against the father's wishes.  The father raised similar concerns as to the maternal grandmother in her role as visitation supervisor.  Of note, the father alleged that he witnessed the grandmother ask the child “leading questions” that resulted in the child becoming upset and that the grandmother had also filmed the father's other children – including those of his fiancée – during visitation exchanges.  For his part, the father maintained that he routinely updates the mother as to the child's health and well-being, but that she does not reciprocate when the child is in her care.  He also emphasized that the child is doing well in school and is regularly attending therapy, in addition to family counseling with the father and the mother.  The father's fiancée also testified, echoing much of the father's concerns and observations as to visitation.  In contrast, the fiancée averred that the father has positive relationships with all the children in their shared household and that the child has close bonds with her half and stepsiblings.

In opposing the father, the mother's testimony offered a contradictory, and at times inconsistent, version of events.  According to the mother, her prior arrest stemmed from a “medical emergency” related to her history of seizures.  She denied having previously tested for drug use and further testified that since the entry of the last order she has completed a mental health treatment program, has been discharged from probation and continues to engage in weekly counseling.  The mother instead accused the father of having alienated the child from the mother's family following his relocation to Schenectady County – despite same having been permitted by Family Court.  Nevertheless, acknowledging that the child's behavior and attitude toward the father needed improvement, the mother asserted that she would be willing to “co-parent” with the father to better safeguard the child's emotional well-being surrounding visitation.  On this issue, the mother testified that she did not understand why her visitation with the child was supervised but that, in response to the father's concerns, she was willing to have someone replace the maternal grandmother as visitation supervisor.  As to her repeated failures to return the child following visitation, the mother testified as to one incident in explaining that the child had “stood up for herself” when refusing to return to the father.  Despite the mother's allegation that the child then appeared fearful of the father, the mother denied having contacted CPS. Instead, she claimed that she had attempted to convince the child to return to the father but that she was unwilling to make “physical contact” to do so.  In the meantime, the mother explained that the child had remained with her and that Suffolk County CPS told her to enroll the child in a local school district on Long Island, despite being aware that she lacked custody and her admission that such action would violate the parties' prior order.  When attempting to enroll the child in a Long Island school, the mother admitted that she did not list the father.  The mother instead asserted that she and the child had attempted to contact the father during this time, but that he ignored their calls.  As to her home environment, the mother explained that she lives with her mother and sister and that they all have close relationships with the child, with whom they enjoy engaging in many recreational activities during the mother's visitation.

In rendering its best interests determination, Family Court found the father's testimony to be credible but that the mother's testimony was “evasive” and, at times, “incongruous.”  To be sure, it is evident that the child is well loved by both parents and extended families.  Nevertheless, we agree with the court that the father demonstrated his willingness to coparent with the mother, to adhere to the prior custody order and to prioritize the needs of the child – particularly as to the child's mental health and continued, regular therapy.  The record likewise amply supports finding that the mother's repeated actions in absconding with the child and her attempts at making unilateral educational and medical changes concerning the child reflect her failure to work with the father and to place the child's well-being first.  The related conclusion that the maternal grandmother's inactions in supervising the mother during visitation led, in part, to the mother's repeated violations of the order is likewise supported.  Upon this record, and deferring to the court's credibility assessments, we find that a sound and substantial basis supports the court's determination that the best interests of the child are served by granting primary physical custody to the father, with parenting time to the mother to be supervised by the father or his designee (see Matter of Omar UU. v. Courteney UU., 247 AD3d at 1335;  Matter of Luis UU. v. Edith VV., 242 AD3d 1413, 1415 [3d Dept 2025];  Matter of Autumn B. v. Jasmine A., 220 AD3d 1073, 1076 [3d Dept 2023], lv denied 41 NY3d 901 [2024];  Matter of Tiffany W. v. James X., 196 AD3d 787, 791–792 [3d Dept 2021] ).

Contrary to the mother's contentions, we find no basis to disturb Family Court's grant of final decision-making authority to the father on matters concerning the child.  The record is replete with examples of the parties' inability to effectively reach joint decisions regarding the child – as is particularly evidenced by the mother's attempts to make changes to the child's mental health counseling, extracurricular activities and school enrollment without consultation with the father.  Importantly, the court's order does not exclude the mother from the decision-making process and instead requires that the parties first “confer and consult” upon issues concerning the child, only granting the father authority to make a final decision where the parties “cannot reach an agreement after reasonable diligence.”  Under these circumstances, we find that Family Court's determination to grant the father final decision-making authority in the event of an impasse is supported by a sound and substantial basis (see Matter of Andrew O. v. Jessica P., 250 AD3d 1192, 1194–1195 [3d Dept 2026];  Matter of Alexander I. v. Allison I., 246 AD3d 1230, 1232 [3d Dept 2026] ).  Although not determinative, we note that the attorney for the child urges this Court to affirm Family Court's custody determination (see Matter of Tiffany W. v. James X., 196 AD3d at 792).

We find similarly unavailing the mother's related ineffective assistance of counsel claims.  “Counsel's representation need not be perfect and, as it is not the role of this Court to second-guess counsel's trial strategy or tactics, a party seeking to prevail on an ineffective assistance of counsel claim must do something more than engage in hindsight speculation as to the viability of counsel's strategy” (Matter of Kyle I. v. Kandice K., 232 AD3d at 1077 [internal quotation marks and citations omitted] ).  “So long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation, the [party's] constitutional right to the effective assistance of counsel will have been met” (Matter of Jacklyn PP. v. Jonathan QQ., 221 AD3d 1293, 1298 [3d Dept 2023] [internal quotation marks, brackets and citations omitted] ).

The mother contends that her counsel's failure to call certain potential visitation supervisors to testify deprived her of effective assistance, however, “the failure to call particular witnesses does not necessarily constitute ineffective assistance of counsel – particularly where the record fails to reflect that the desired testimony would have been favorable” (Matter of Madelyn V. [Lucas W. -Jared V.], 199 AD3d 1249, 1252 [3d Dept 2021] [internal quotation marks and citations omitted], lv denied 38 NY3d 901 [2022];  see Matter of Jacklyn PP. v. Jonathan QQ., 221 AD3d at 1298).  Indeed, notwithstanding the mother's position at the hearing that the prior order's requirement of supervised visitation be discontinued, her counsel nevertheless elicited testimony concerning potential alternative supervisors in response to the father's concerns in this regard.  The mother's claims as to counsel's failure to submit certain documentary evidence are similarly unpersuasive inasmuch as they amount to merely “hindsight speculation as to the viability of counsel's strategy” (Matter of Dianne SS. v. Jamie TT., 235 AD3d 1138, 1143 [3d Dept 2025] [internal quotation marks and citations omitted];  see Matter of Ronda A. v. Jennifer A., 224 AD3d 1130, 1133 [3d Dept 2024] ).  To be sure, the record here reflects that the mother's counsel raised relevant objections at the hearing, engaged in extended cross-examination of the father, and elicited extensive testimony about the mother's completion of certain mental health treatment.  Viewing the record in its totality, we are satisfied that the mother received meaningful representation (see Matter of Richard CC. v. Lacey DD., 243 AD3d 1186, 1190 [3d Dept 2025];  Matter of Ann T. v. James U., 241 AD3d 1662, 1666–1667 [3d Dept 2025];  Matter of Sheena PP. v. Edward QQ., 238 AD3d 1417, 1421 [3d Dept 2025] ).

The mother next contends that Family Court erred in determining that she failed to establish a family offense.  We disagree.  It is the petitioner who “bears the burden of proving by a fair preponderance of the evidence that the respondent committed one of the family offenses enumerated within Family Ct Act § 821(1)(a)” (Matter of Samah DD. v. Mark VV., 235 AD3d 1116, 1117 [3d Dept 2025] [internal quotation marks, brackets and citation omitted], lv denied 44 NY3d 901 [2025];  see Family Ct Act § 832).  “The determination of whether the respondent has committed one or more of the specifically enumerated family offenses presents a factual question for Family Court, and [this Court] defer[s] to the court's credibility assessments in resolving that question” (Matter of Heather E. v. Christopher F., 189 AD3d 1937, 1937–1938 [3d Dept 2020] [citations omitted];  see Matter of Holly P. v. George Q., 240 AD3d 1029, 1030 [3d Dept 2025] ).  Relevant here, “[a] person is guilty of assault in the third degree when with intent to cause physical injury to another person, he or she causes such injury to such person or to a third person” (Matter of Leslie QQ. v. Daniel RR., 232 AD3d 1086, 1091 [3d Dept 2024] [internal quotation marks, ellipsis, brackets and citation omitted] ).  Similarly, “[a] person is guilty of reckless endangerment in the second degree when he [or she] recklessly engages in conduct which creates a substantial risk of serious physical injury to another person” (Penal Law § 120.20).

In support of her family offense petition, the mother alleged that toward the end of a scheduled visitation, the child told her that the father had previously “grabbed” her arm, “hit her on [the] bottom” and locked her in the car for an extended period of time, and that the child was fearful of the father as a result.  Upon this basis, the mother explained that she did not return the child to the father following that visitation and instead took the child with her to Long Island.  For his part, the father denied the mother's allegations but admitted that the child was “being difficult getting out of the car” before visitation with the mother.  Although the father acknowledged flaws in his disciplinary approach – having apparently “shut” the child in the car who then became “a little freaked out” – Family Court credited his testimony that he did not “hit or grab[ ]” the child as alleged.  Notably, the father testified that the mother had refused to return the child following visitation, but that a subsequent CPS investigation determined her allegations to be unfounded and that the child was quickly returned to the father.  Upon this record, and deferring to Family Court's credibility determinations, we agree that the mother's unsupported allegations were insufficient to meet her burden to establish a family offense (see Matter of Linda UU. v. Dana VV., 212 AD3d 906, 909–910 [3d Dept 2023], lvs denied 39 NY3d 913 [2023], 39 NY3d 913 [2023];  Matter of Christina MM. v. George MM., 103 AD3d 935, 936 [3d Dept 2013] ).

The mother's remaining contentions have either been rendered academic by our determination or have been considered and found to be lacking in merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   The consent order further provided that the father was permitted to relocate with the child to Schenectady County, away from where the mother resided.

Mackey, J.

Clark, J.P., Pritzker, Ceresia and Corcoran, JJ., concur.