Opinion
12710 Dkt. No. V-27648/17 Case No. 2019-04349
12-22-2020
In re ANTHONY G., Petitioner–Respondent, v. STEPHANIE H., Respondent–Appellant.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant. Geoffrey P. Berman, Larchmont, for respondent. Kenneth M. Tuccillo, Hastings on Hudson, attorney for the child.
Law Office of Lewis S. Calderon, Jamaica (Lewis S. Calderon of counsel), for appellant.
Geoffrey P. Berman, Larchmont, for respondent.
Kenneth M. Tuccillo, Hastings on Hudson, attorney for the child.
Acosta, P.J., Oing, Scarpulla, Mendez, JJ.
Order, Family Court, Bronx County (Tamra Walker, Referee), entered on or about October 2, 2019, which, after a hearing, granted petitioner-father's petition for a final order of custody of the subject child and denied respondent-mother's cross petition for custody, unanimously affirmed, without costs.
The totality of the circumstances supports the court's determination that sole legal and physical custody to petitioner-father was in the child's best interest (see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Among other things, the mother absconded to Florida with the child, without the knowledge and consent of the father, who had been a regular presence in the child's life (see Matter of Victor L. v. Darlene L., 251 A.D.2d 178, 179, 674 N.Y.S.2d 371 [1st Dept. 1998], lv denied 92 N.Y.2d 816, 683 N.Y.S.2d 760, 706 N.E.2d 748 [1998] ; Matter of Oscar S. v. Joyesha J., 149 A.D.3d 439, 52 N.Y.S.3d 28 [1st Dept. 2017] ).
The mother contends that the Family Court denied her the opportunity to present her case. As a threshold matter, the mother's argument is unpreserved for review (see Matter of Toussaint Thoreau E. [Allen E.], 170 A.D.3d 551, 94 N.Y.S.3d 840 [1st Dept. 2019] ; see also Matter of Anthony S. v. Monique T.B., 179 A.D.3d 530, 118 N.Y.S.3d 75 [1st Dept. 2020] ), and we decline to review in the interest of justice. As an alternative holding, we find that the Family Court properly concluded the fact-finding hearing in the mother's absence and did not deny her due process in doing so. Although the possibility of the mother testifying electronically previously had been raised, there is no record that the mother's attorney still intended for her to testify or that such request had been made by filing the necessary paperwork pursuant to Domestic Relations Law § 75–j (Form UCCJEA–7[a] ). Moreover, the mother's counsel was present at all stages during fact-finding and participated on her behalf; therefore, the mother's absence from the courtroom did not violate her rights (see e.g. Kyanna T. [Winston R.], 99 A.D.3d 1011, 1014, 953 N.Y.S.2d 121 [2012], lv denied 20 N.Y.3d 856, 959 N.Y.S.2d 691, 983 N.E.2d 770 [2013] ).
Further, the record fails to support the mother's contention that she was denied the effective assistance of counsel. The mother failed to demonstrate that she was prejudiced by her counsel's alleged failure to secure her testimony in response to the custody petition or that favorable evidence could and should have been offered on her behalf (see Matter of Devin M. [Margaret W.], 119 A.D.3d 435, 989 N.Y.S.2d 35 [1st Dept. 2014] ).