Opinion
12882 Dkt. No. V-7282-11/18A V-7282-11/18B Case No. 2020-02448
01-19-2021
In the Matter of CHRISTIE E. R., Petitioner–Appellant, v. PEDRO J. D., Respondent–Respondent.
Larry S. Bachner, New York, for appellant. Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), attorney for the child.
Larry S. Bachner, New York, for appellant.
Dawne A. Mitchell, The Legal Aid Society, New York (Raymond E. Rogers of counsel), attorney for the child.
Webber, J.P., Mazzarelli, González, Scarpulla, Shulman, JJ.
Order, Family Court, Bronx County (Jennifer S. Burtt, Referee), entered on or about May 12, 2020, which denied petitioner mother's petition to modify a prior order awarding the father sole custody by awarding her sole legal and physical custody of the parties' child and permitting her and the child to relocate to California, unanimously affirmed, without costs.
The Family Court had subject matter jurisdiction over the custody proceeding since the custody order was entered in New York and the child continues to have substantial connection to New York (Domestic Relations Law § 76–a[1] ). The mother's contention that the paternal grandmother should have been joined as a necessary party since she has been the child's de facto custodian is unpreserved for appellate review (see CPLR 5501[a][3] ; Matter of Michael R. v. Pamela G., 184 A.D.3d 507, 508, 126 N.Y.S.3d 130 [1st Dept. 2020] ; Matter of Brittni K., 297 A.D.2d 236, 240–241, 746 N.Y.S.2d 290 [1st Dept. 2002] ). In any event, the grandmother was not a necessary party because she had never been given legal custody rights and, thus, she had no rights that could be affected by the proceeding (see generally CPLR 1001[a] ). The mother's assertion that the Family Court essentially awarded the grandmother custody of the child is incorrect. The court continued the existing custody order which gives the father sole legal custody. While the grandmother has been the child's primary caregiver during the week while the father works nights running his restaurant business, the father is ultimately responsible for taking care of the child and has provided fully for all of the child's needs.
The Family Court's determination that it was in the best interests of the child not to transfer custody to the mother was supported by a sound and substantial basis in the record (see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ; Yolanda R. v. Eugene I.G., 38 A.D.3d 288, 288, 831 N.Y.S.2d 387 [1st Dept. 2007] ). The record established that the mother's involvement in the child's life for the past eight years had been limited to infrequent visitation. Further, changing custody to the mother would involve uprooting the child from his long-time home, and moving him to California, far from his grandmother and father who have cared for him virtually his whole life. The court properly gave consideration to the then 13–year–old child's wish to continue the existing custody and living arrangements (see Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408, 985 N.Y.S.2d 28 [1st Dept. 2014] )