Opinion
V-03207-12/18AA/18AB/18Z V-03208-12/18AC/18AB/18AD
01-12-2022
In the Matter of Angela Khan, appellant, v. Meiyer Schwartz, respondent.
Schulte Roth & Zabel LLP, New York, NY (Andrew Gladstein and New York Legal Assistance Group [Beth Goldman, Rachel Lieb, and Amanda Beltz] of counsel), for appellant. Eric Ole Thorsen, New City, NY, for respondent. Nicole Greenwald, New City, NY, attorney for the child C. S. Christopher Widholm, New City, NY, attorney for the child M. S.
Schulte Roth & Zabel LLP, New York, NY (Andrew Gladstein and New York Legal Assistance Group [Beth Goldman, Rachel Lieb, and Amanda Beltz] of counsel), for appellant.
Eric Ole Thorsen, New City, NY, for respondent.
Nicole Greenwald, New City, NY, attorney for the child C. S.
Christopher Widholm, New City, NY, attorney for the child M. S.
CHERYL E. CHAMBERS, J.P. LINDA CHRISTOPHER, JOSEPH A. ZAYAS, DEBORAH A. DOWLING, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Rockland County (Rachel E. Tanguay, J.), dated July 8, 2019. The order, insofar as appealed from, after a hearing, denied that branch of the mother's petition which was to modify the in-person parental access provisions of a prior order of the same court entered September 14, 2017, upon consent, inter alia, awarding sole legal and physical custody of the parties' children to the father.
ORDERED that the appeal from so much of the order dated July 8, 2019, as denied that branch of the mother's petition which was to modify the order entered September 14, 2017, with respect to the child C. S. is dismissed as academic, without costs or disbursements, as that child has reached the age of majority; and it is further, ORDERED that the order dated July 8, 2019, is affirmed insofar as reviewed, without costs or disbursements.
"'Modification of an existing custody or [parental access] arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child'" (Matter of Colon v Roggeman, 194 A.D.3d 1042, 1042, quoting Matter of Karen S. v Quinn S., 104 A.D.3d 951, 951; see Matter of Induddi v Moore, 214 A.D.2d 616). The best interests of the child are determined based upon the totality of the circumstances (see Eschbach v Eschbach, 56 N.Y.2d 167, 174; Matter of Jackson v Wylie-Tunstall, 159 A.D.3d 821, 822). "'[A] noncustodial parent should have reasonable rights of [parental access], and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that [parental access] would be detrimental to the child'" (Matter of Grisanti v Grisanti, 4 A.D.3d 471, 473, quoting Paul G. v Donna G., 175 A.D.2d 236, 237). "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, its findings are generally accorded great deference and will not be disturbed unless they lack a sound and substantial basis in the record" (Matter of Hargrove v Langenau, 138 A.D.3d 846, 847; see Matter of Colon v Roggeman, 194 A.D.3d 1042; Matter of Thompson v Yu-Thompson, 41 A.D.3d 487, 488).
Here, the Family Court's determination that therapeutic parental access with the child M. S. would be detrimental to the child has a sound and substantial basis in the record and will not be disturbed (see Matter of Granzow v Granzow, 168 A.D.3d 1049, 1050; Iacono v Iacono, 117 A.D.3d 988, 989; Matter of Sassower-Berlin v Berlin, 58 A.D.3d 635, 636). Contrary to the mother's contention, the court properly considered the testimony of the child's therapist (see Matter of Granzow v Granzow, 168 A.D.3d at 1050-1051; Matter of Sassower-Berlin v Berlin, 58 A.D.3d 635, 636), and the express wishes of the then 12-year-old child (see Matter of Rosenblatt v Rosenblatt, 129 A.D.3d 1091, 1093; Iacono v Iacono, 117 A.D.3d at 989; Matter of Nicholas v Nicholas, 107 A.D.3d 899, 900; Matter of Mera v Rodriguez, 73 A.D.3d 1069, 1070; Matter of Sassower-Berlin v Berlin, 58 A.D.3d at 636). We note that the court's order does provide that the mother may send correspondence directly to the child M. S.
The mother's remaining contentions are without merit.
CHAMBERS, J.P., CHRISTOPHER, ZAYAS and DOWLING, JJ., concur.