Opinion
2015-07-22
E.V. (Anonymous), appellant, v. R.V. (Anonymous), respondent.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Robert A. Spolzino of counsel), for appellant. Ronald J. Bavero, White Plains, N.Y. (Timothy M. Tippins of counsel), for respondent.
Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, N.Y. (Robert A. Spolzino of counsel), for appellant. Ronald J. Bavero, White Plains, N.Y. (Timothy M. Tippins of counsel), for respondent.
George E. Reed, Jr., White Plains, N.Y., attorney for the child.
WILLIAM F. MASTRO, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.
Appeal from an order of the Supreme Court, Westchester County (John P. Colangelo, J.), dated July 2, 2014. The order, insofar as appealed from, granted that branch of the father's cross motion which was to modify prior orders of custody and visitation incorporated into the parties' judgment of divorce so as to award him sole legal and physical custody of the subject child. By decision and order on motion dated August 14, 2014, this Court granted the mother's motion to stay enforcement of the order pending the hearing and determination of this appeal.
ORDERED that the order dated July 2, 2014, is reversed insofar as appealed from, on the law, without costs or disbursements, and the matter is remitted to Supreme Court, Westchester County, for further proceedings consistent herewith, on an expedited basis; and it is further,
ORDERED that pending a new determination, physical custody of the child shall remain with the mother, with liberal visitation to the father, in accordance with the prior orders of the Supreme Court, Westchester County, dated November 25, 2008, and March 25, 2009, as modified and affirmed by this Court, respectively, on November 17, 2009.
An order or judgment awarding custody may be modified upon a showing that there has been a change in circumstances such that modification is necessary to ensure the best interests of the child ( see Matter of Besen v. Besen, 127 A.D.3d 1076, 5 N.Y.S.3d 891; Franco v. Franco, 127 A.D.3d 810; Matter of Thomas v. Wong, 127 A.D.3d 769, 7 N.Y.S.3d 220). “In determining whether such a change exists, the court must determine whether the totality of the circumstances justifies modification” ( matter of connolly v. walsH, 126 A.d.3d 691, 693, 5 N.y.s.3d 241). the factors to be considered include whether the alleged change in circumstances suggests that one of the parties is unfit to parent, the nature and quality of the relationships between the child and each of the parties, the ability of each parent to provide for the child's emotional and intellectual development, the parental guidance that the custodial parent provides for the child, and the effect an award of custody to one parent might have on the child's relationship with the other parent ( see id. at 693, 5 N.Y.S.3d 241; Matter of Lazo v. Cherrez, 121 A.D.3d 999, 995 N.Y.S.2d 141).
Here, the Supreme Court failed to conduct an in camera examination of the child ( see Matter of Lincoln v. Lincoln, 24 N.Y.2d 270, 272–273, 299 N.Y.S.2d 842, 247 N.E.2d 659). Further, the court relied on a forensic report that, by the date the court issued its determination, was more than 2 1/2 years old. Under the circumstances of this case, including the protracted hearing conducted over the course of 44 nonconsecutive days ( see22 NYCRR 202.16 [l] ), the delay thereafter in issuing the order after the hearing, and “the pace of psychological development of the child whose best interest is the primary concern” (Matter of Joseph F. v. Patricia F., 32 A.D.3d 938, 939, 821 N.Y.S.2d 625), we find that the record before us is no longer sufficient for determining the ultimate issues presented herein ( see Matter of Michael B., 80 N.Y.2d 299, 318, 590 N.Y.S.2d 60, 604 N.E.2d 122; Matter of Bosque v. Blazejewski–D'Amato, 123 A.D.3d 704, 997 N.Y.S.2d 692; Matter of Fleischman v. Hall, 88 A.D.3d 1000, 932 N.Y.S.2d 83).
Accordingly, the order must be reversed insofar as appealed from and the matter remitted to the Supreme Court, Westchester County, for a re-opened expedited hearing solely to receive an updated forensic mental health evaluation conducted by the same court-appointed expert, Dr. Stephen Paul Herman, if he is available ( see Cervera v. Bressler, 50 A.D.3d 837, 838, 855 N.Y.S.2d 658; Pudalov v. Pudalov, 308 A.D.2d 524, 764 N.Y.S.2d 831), and an in camera examination of the child, now 10 years old. Thereafter, the Supreme Court shall issue a new expedited determination of that branch of the father's cross motion which was to modify prior orders of custody and visitation incorporated into the parties' judgment of divorce. We express no opinion as to the appropriate determination to be made ( see Matter of Leval B. v. Kiona E., 115 A.D.3d 665, 981 N.Y.S.2d 449).