Opinion
2012-06-27
In the Matter of Vernon I. JONES, respondent, v. Jalene M. PAGAN, appellant.
Bernfeld, DeMatteo & Bernfeld LLP, New York, N.Y. (Joseph R. DeMatteo of counsel), for appellant. Edward E. Caesar, Brooklyn, N.Y., for respondent.
Bernfeld, DeMatteo & Bernfeld LLP, New York, N.Y. (Joseph R. DeMatteo of counsel), for appellant. Edward E. Caesar, Brooklyn, N.Y., for respondent.
Karen P. Simmons, Brooklyn, N.Y. (Sena Kim–Reuter of counsel), attorney for the children.
ANITA R. FLORIO, J.P., RUTH C. BALKIN, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (O'Shea, J.), dated March 21, 2011, which, after a hearing, granted the father's petition, in effect, to modify two orders of custody and visitation of the same court dated July 14, 2003, and June 1, 2006, respectively, so as to award him sole custody of the subject children.
ORDERED that the order dated March 21, 2011, is affirmed, without costs or disbursements.
The evidence established that the mother engaged in a course of conduct which intentionally interfered with the relationship between the children and the father. Such action is “so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent” (Matter of Ross v. Ross, 68 A.D.3d 878, 878, 890 N.Y.S.2d 127;see Matter of Gurewich v. Gurewich, 58 A.D.3d 628, 629, 872 N.Y.S.2d 141;Matter of Weinberg v. Weinberg, 52 A.D.3d 616, 617, 861 N.Y.S.2d 70;Matter of Nikolic v. Ingrassia, 47 A.D.3d 819, 820, 850 N.Y.S.2d 539;see also Matter of Jules v. Corriette, 76 A.D.3d 1016, 1017, 908 N.Y.S.2d 89;Pierre–Paul v. Boursiquot, 74 A.D.3d 935, 936, 903 N.Y.S.2d 94;Bains v. Bains, 308 A.D.2d 557, 558, 764 N.Y.S.2d 721). Although the mother attempted to excuse her behavior based upon her allegations of domestic violence by the father, the Family Court concluded that her allegations were not supported by credible evidence, and thus it properly discounted that explanation ( see Pierre–Paul v. Boursiquot, 74 A.D.3d at 936, 903 N.Y.S.2d 94).
Likewise, although the mother is correct that “[a] parent's criminal history may militate against an award of custody” (Matter of Nunn v. Bagley, 63 A.D.3d 1068, 1069, 880 N.Y.S.2d 561;see Matter of Esposito v. Shannon, 32 A.D.3d 471, 474, 823 N.Y.S.2d 159), a parent's criminal history is not an absolute bar to custody and must, as with any other factor, be considered in the totality of the circumstances( see Matter of Moore v. Fink, 77 A.D.3d 1204, 1206, 909 N.Y.S.2d 810;Matter of Esposito v. Shannon, 32 A.D.3d at 473–474, 823 N.Y.S.2d 159;see also Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260;Miller v. Pipia, 297 A.D.2d 362, 364, 746 N.Y.S.2d 729). Here, the Family Court's determination that the father “appear[ed] to have refocused his life without further criminal behavior” and that awarding him custody was in the children's best interest, was supported by the record ( compare Matter of Moore v. Fink, 77 A.D.3d at 1206–1207, 909 N.Y.S.2d 810;Matter of Esposito v. Shannon, 32 A.D.3d at 473–474, 823 N.Y.S.2d 159).