Opinion
799 CAF 18–00899
09-27-2019
In the Matter of Alexander WALTON–CARTER, Petitioner–Appellant, v. Regina BUTLER, Respondent–Respondent.
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER–APPELLANT.
CARA A. WALDMAN, FAIRPORT, FOR PETITIONER–APPELLANT.
PRESENT: SMITH, J.P., CARNI, NEMOYER, CURRAN, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Petitioner father filed a petition seeking modification of an existing custody order and a separate petition alleging that respondent mother violated that custody order. The father appeals from an order that, among other things, denied his modification petition insofar as it sought primary physical custody of the parties' child and dismissed the violation petition. Contrary to the father's contention, the determination of Family Court that it was in the child's best interests to remain in the primary physical custody of the mother is supported by the requisite sound and substantial basis in the record (see Matter of White v. Stone , 165 A.D.3d 1641, 1642, 85 N.Y.S.3d 669 [4th Dept. 2018], lv denied 32 N.Y.3d 913, 2019 WL 150834 [2019] ; see generally Eschbach v. Eschbach , 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ).
We reject the father's further contention that the court erred in dismissing his violation petition and refusing to find the mother in civil contempt of court for violating the existing custody order. We conclude that the father failed to establish by clear and convincing evidence the elements necessary to support a finding of civil contempt (see generally El–Dehdan v. El–Dehdan , 26 N.Y.3d 19, 29, 41 N.E.3d 340 [2015] ).