Opinion
695 CAF 17–00626
06-08-2018
In the Matter of Joseph N. CAPOBIANCO, Petitioner–Appellant, v. Michelle A. CAPOBIANCO, Respondent–Respondent.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–APPELLANT. NORMAN P. DEEP, CLINTON, FOR RESPONDENT–RESPONDENT. ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (DANIELLE K. BLACKABY OF COUNSEL), FOR PETITIONER–APPELLANT.
NORMAN P. DEEP, CLINTON, FOR RESPONDENT–RESPONDENT.
ANDREW S. GREENBERG, SYRACUSE, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., SMITH, PERADOTTO, DEJOSEPH, AND TROUTMAN, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to Family Court Act article 6, petitioner father appeals from an order that modified a prior joint custody order by awarding respondent mother sole legal custody of the subject child, with visitation to the father. Although both the father and the mother petitioned for sole custody of the child, the father now contends for the first time on appeal that Family Court erred in failing to continue joint custody. That contention therefore is not properly before us (see Matter of Voorhees v. Talerico , 128 A.D.3d 1466, 1467, 8 N.Y.S.3d 796 [4th Dept. 2015], lv denied 25 N.Y.3d 915, 2015 WL 5037920 [2015] ). We nevertheless conclude that " ‘the evidence at the hearing established that the parties have an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances’ " ( Matter of Ladd v. Krupp, 136 A.D.3d 1391, 1392, 24 N.Y.S.3d 834 [4th Dept. 2016] ). We note that the father does not dispute on appeal that the court, having found that an award of sole custody was warranted, properly determined that it was in the best interests of the child for the mother to be the custodial parent (see generally id. at 1392–1393, 24 N.Y.S.3d 834 ). Instead, the father further contends only that the court erred in failing to award him additional visitation time with the child. Contrary to the father's contention, the visitation schedule ordered by the court is supported by a sound and substantial basis in the record (see Matter of Golda v. Radtke , 112 A.D.3d 1378, 1378, 977 N.Y.S.2d 843 [4th Dept. 2013] ).