Opinion
No. 2023-10341 Docket No. V-24790-17
10-09-2024
In the Matter of Guaroa Eden Cornielle, appellant, v. Yohanny Hernandez Rosado, respondent.
Lauri Gennusa, Laurelton, NY, for appellant. Elliot Green, Brooklyn, NY, for respondent. Linda C. Braunsberg, Staten Island, NY, attorney for the child.
Lauri Gennusa, Laurelton, NY, for appellant.
Elliot Green, Brooklyn, NY, for respondent.
Linda C. Braunsberg, Staten Island, NY, attorney for the child.
COLLEEN D. DUFFY, J.P. ROBERT J. MILLER LINDA CHRISTOPHER LOURDES M. VENTURA, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Kings County (Nisha Menon, J.), dated September 28, 2023. The order, insofar as appealed from, after a hearing, denied those branches of the father's petition which were, in effect, for sole legal and physical custody of the parties' child, awarded the mother sole legal and physical custody of the child, and directed that the father shall have parental access on alternate weekends from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. and such additional parental access as agreed upon by the parties.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing that the father shall have parental access on alternate weekends from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. and such additional parental access as agreed upon by the parties, and substituting therefor a provision awarding the father four weeks of consecutive parental access with the subject child during the summer, relatively equal time during the remainder of the summer, equal access during school holidays during the school year, holidays, and special occasions, and appropriate weekend and non-overnight midweek parental access; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Family Court, Kings County, to issue an order setting forth the dates of the father's summer, school holidays, nonschool holidays, special occasions, weekend, and non-overnight midweek parental access, with a provision establishing the parties' responsibility for the child's travel to and from Pennsylvania, when the child will be traveling to Pennsylvania for the access, in accordance herewith, with all convenient speed; and it is further, ORDERED that pending the determination of a new parental access schedule, the parental access schedule set forth in the order shall remain in effect.
The parties, who were never married to each other, are the parents of a child born in 2012. In approximately 2015, the father relocated to Pennsylvania, while the child remained in New York with the mother. In September 2017, the father filed a petition, inter alia, in effect, for sole legal and physical custody of the child. After a hearing, the Family Court, among other things, denied those branches of the father's petition which were, in effect, for sole legal and physical custody of the child, awarded the mother sole legal and physical custody of the child, and directed that the father shall have parental access on alternate weekends from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. and such additional parental access as agreed upon by the parties. The father appeals.
"The paramount concern in matters of custody and parental access is the best interests of the child under the totality of the circumstances" (Matter of Romero-Flores v Hernandez, 214 A.D.3d 882, 882). In circumstances where a parent's "relocation... precipitated the commencement of [a proceeding], the matter concerns an initial custody determination, and, therefore, the strict application of the factors applicable to relocation petitions is not required" (Matter of Wright v Burke, 226 A.D.3d 694, 695 [internal quotation marks omitted]). "Rather, the relocation is but one factor among many for the Family Court to consider in determining what is in the best interests of the child" (id. [internal quotation marks omitted]). Other factors include, "among other things, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well[-]being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Haase v Jones, ___ A.D.3d ___, ___, 2024 NY Slip Op 04319, *2 [2d Dept] [internal quotation marks omitted]). "[T]he existence of any one factor is not determinative," however, as "[t]he court [must] consider the totality of the circumstances" (Matter of Kerry D. v Deena D., ___ A.D.3d ___, ___, 2024 NY Slip Op 04138, *1 [2d Dept] [internal quotation marks omitted]). "Since the Family Court's determination with respect to custody and [parental access] depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parties, deference is accorded to its findings in this regard, and such findings will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Martinez v Gaddy, 223 A.D.3d 816, 817 [internal quotation marks omitted]).
As relevant to this appeal, "[j]oint [legal] custody reposes in both parents a shared responsibility for and control of a child's upbringing" (Matter of McFarlane v Sapeg, 225 A.D.3d 766, 767 [internal quotation marks omitted]). "[It] is encouraged as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" (Matter of Martinez v Gaddy, 223 A.D.3d at 818 [internal quotation marks omitted]). "However, joint custody is inappropriate where the parties are antagonistic toward each other, do not communicate at all, and have demonstrated an inability to cooperate on matters concerning the children" (Franklin v Franklin, 199 A.D.3d 758, 759; see Braiman v Braiman, 44 N.Y.2d 584, 589-590).
Here, contrary to the father's contention, the Family Court's conclusion that joint legal custody was not appropriate under the circumstances has a sound and substantial basis in the record. "Since the record establishes that the nature of the parties' relationship effectively precluded joint decision-making, there is no basis to disturb the court's determination that joint custody was inappropriate" (Matter of Haase v Jones, ___ A.D.3d at ___, 2024 NY Slip Op 04319, *3; see Matter of Martinez v Gaddy, 223 A.D.3d at 818). Further, the court's determination that the child's best interests would be served by awarding the mother sole legal custody, without awarding the father decision-making authority as to educational matters, also has a sound and substantial basis in the record (see Matter of Narine v Singh, 229 A.D.3d 700, 702; Matter of Upia-Parham v Parham, 222 A.D.3d 988, 989).
We note that on appeal, the father concedes that the Family Court properly awarded the mother sole physical custody based on the facts adduced at the hearing (see Matter of Bristow v Patrice, 221 A.D.3d 684, 686).
"[Parental access] is a joint right of the noncustodial parent and of the child" (Matter of Pedicini v Hull, 223 A.D.3d 672, 673 [internal quotation marks omitted]). "[A]bsent extraordinary circumstances, such as where parental access would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable parental access privileges" (Matter of Kim v Becker, 223 A.D.3d 813, 815 [internal quotation marks omitted]). Nonetheless, "[t]he extent to which the noncustodial parent may exercise [parental access] is a matter committed to the sound discretion of the hearing court, to be determined on the basis of the best interests of the child, consistent with the concurrent right of the child and the noncustodial parent to meaningful time together" (Matter of Kerry D. v Deena D., ___ A.D.3d at ___, 2024 NY Slip Op 04138, *1 [internal quotation marks omitted]; see Matter of Roa v Marte, 171 A.D.3d 759, 761). Moreover, "[a] court may not delegate its authority to determine parental access to either a parent or a child" (Matter of Acosta v Melendez, 179 A.D.3d 912, 914 [internal quotation marks omitted]). However, in circumstances where there is "no disagreement between the parties regarding the parental access schedule and the parties [are able to] cooperat[e] with regard to same," a court may award the noncustodial parent parental access with the child as agreed by the parties (Matter of Miller v Thompson, 184 A.D.3d 643, 644; see Matter of Samuel v Sowers, 162 A.D.3d 674, 675). By contrast, "[w]here the record demonstrates animosity between the parties and an inability to cooperate, the best interests of the child[ ] generally require that the Family Court set forth a [parental] access schedule" (Matter of Samuel v Sowers, 162 A.D.3d at 675; see Matter of Haase v Jones, ___ A.D.3d at ___, 2024 NY Slip Op 04319, *4).
Here, under the circumstances established at the hearing, the Family Court's directive that the father shall have parental access on alternate weekends from Saturday at 10:00 a.m. to Sunday at 7:00 p.m. and such additional parental access as agreed upon by the parties lacks a sound and substantial basis in the record (see Matter of Kim v Becker, 223 A.D.3d at 815-816; Matter of Alvarado v Cordova, 158 A.D.3d 794, 795). The court appropriately declined to award the father midweek overnight parental access during the school year, as such an award would subject the child to a lengthy and impractical commute between Brooklyn and Pennsylvania, with minimal time left during waking hours for meaningful parent-child contact (see Matter of Yegnukian v Kogan, 179 A.D.3d 1082, 1084-1085). However, the court's award of overnight parental access one night every two weeks is insufficient (see Matter of Kim v Becker, 223 A.D.3d at 815-816; R.K. v R.G., 169 A.D.3d 892, 895). Moreover, the court failed to provide parental access to the father on holidays, school vacations, and special occasions, such as the child's birthday, without the consent of the mother (see Matter of Haase v Jones, ___ A.D.3d at ___, 2024 NY Slip Op 04319, *4).
Thus, upon remittal, the Family Court, with all convenient speed, should establish a new parental access schedule that would ensure that the bond between the child and the father is maintained without the need for the mother's consent to such parental access (see Matter of Acosta v Melendez, 179 A.D.3d at 914; Matter of Alvarado v Cordova, 158 A.D.3d at 795). Although the father's residence in Pennsylvania may be a hurdle to certain types of parental access during the school year, the court should consider the extent to which non-overnight midweek parental access between the father and the child during the school year in New York is feasible, and should set forth a specific schedule for holidays, school vacations, special occasions, and additional overnight parental access on the weekends (see Matter of Haase v Jones, ___ A.D.3d at ___, 2024 NY Slip Op 04319, *4; Matter of Kim v Becker, 223 A.D.3d at 815-816). The new schedule should award the father four weeks of consecutive parental access with the child in Pennsylvania in the summer, accommodating any summer school schedule required for the child, on dates to be determined by the court (see Matter of Haase v Jones, ___ A.D.3d at ___, 2024 NY Slip Op 04319, *4; Matter of Alvarado v Cordova, 158 A.D.3d at 795). The remainder of the child's summer break should be split relatively equally between the parties, accommodating any required summer school schedule. "The parties shall also share the child's school holiday time equally" (Matter of Haase v Jones, ___ A.D.3d at ___, 2024 NY Slip Op 04319, *4). Finally, the court should also implement "clear rules... establishing" the parties' "responsibility for ensuring the [child's] travel to and from [Pennsylvania]" (Matter of Alvarado v Cordova, 158 A.D.3d at 795).
The father's remaining contentions are either unpreserved for appellate review or without merit (see Matter of Martynchuk v Vasylkovska, 223 A.D.3d 819, 821; Matter of Goundan v Goundan, 210 A.D.3d 1087, 1089; Matter of Katie M. T.-J. v Jemel D.T., 206 A.D.3d 651, 652).
DUFFY, J.P., MILLER, CHRISTOPHER and VENTURA, JJ., concur.