Opinion
No. 2023-02397 Docket No. V-3980-19/22D
05-15-2024
In the Matter of Ryan Patrick Mahoney, respondent, v. Lauren Rita Hughes, appellant.
Friedman & Friedman, PLLC, Garden City, NY (Crystal S. Pannell of counsel), for appellant. Cheryl Mallis, Garden City, NY, attorney for the child.
Friedman & Friedman, PLLC, Garden City, NY (Crystal S. Pannell of counsel), for appellant.
Cheryl Mallis, Garden City, NY, attorney for the child.
ANGELA G. IANNACCI, J.P. WILLIAM G. FORD JANICE A. TAYLOR LAURENCE L. LOVE, JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Nassau County (Sharon N. Clarke, Ct. Atty. Ref.), dated February 8, 2023. The order, insofar as appealed from, after a hearing, granted those branches of the father's petition which were to modify a so-ordered stipulation of custody dated March 29, 2022, so as to award him final decision-making authority with respect to the parties' child's educational and medical needs.
ORDERED that the order is modified, on the facts and in the exercise of discretion, by deleting the provision thereof granting that branch of the father's petition which was to modify the so-ordered stipulation of custody so as to award him final decision-making authority with respect to the child's educational needs, and substituting therefor a provision denying that branch of the petition; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The parties, who were never married, have one child together, born in October 2018. Pursuant to a so-ordered stipulation of custody dated March 29, 2022, the parties agreed that the mother would have residential custody of the child and that the parents would have joint legal custody, with the mother having final decision-making authority. In April 2022, the father filed a petition to modify the so-ordered stipulation of custody so as to award him sole physical custody on an emergency basis. After a hearing, the Family Court granted those branches of the father's petition which were to modify the so-ordered stipulation of custody so as to award him final decision-making authority with respect to the child's educational and medical needs. The mother appeals.
Initially, the court attorney referee did not exceed her jurisdiction by determining this matter, since, contrary to the mother's contention, the record demonstrates that both parties stipulated to have this matter heard and determined by a court attorney referee (see Matter of Moran v Lane, 218 A.D.3d 687, 688).
"'In order to modify an existing custody or parental access arrangement, there must be a showing of a change in circumstances such that modification is required to protect the best interests of the child'" (Matter of Martinez v Gaddy, 223 A.D.3d 816, 817, quoting Matter of LaPera v Restivo, 202 A.D.3d 788, 789). "'The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances'" (Matter of Martinez v Gaddy, 223 A.D.3d at 817, quoting Matter of Cabano v Petrella, 169 A.D.3d 901, 902; see Eschbach v Eschbach, 56 N.Y.2d 167, 171-172). "The Family Court is in the best position to evaluate the credibility of the witnesses and its determination should not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Pierce v Caputo, 214 A.D.3d 877, 879; see Matter of Turcios v Cordero, 173 A.D.3d 1048, 1049). "When an antagonistic relationship exists between the parties, it may be appropriate, depending upon the particular circumstances of the case, to give each party decision-making authority in separate areas" (Matter of Steingart v Fong, 156 A.D.3d 794, 796; see Chamberlain v Chamberlain, 24 A.D.3d 589, 592).
Here, the Family Court's determination that the father established that there had been a change in circumstances such that modification of the so-ordered stipulation of custody was necessary has a sound and substantial basis in the record (see Matter of McFarlane v Sapeg, 225 A.D.3d 766, 767; Matter of Argila v Edelman, 174 A.D.3d 521, 524). Additionally, the court's determination that it was in the child's best interests to award the father final decision-making authority with respect to the child's medical needs has a sound and substantial basis in the record (see Cohen v Cohen, 177 A.D.3d 848, 852; Matter of Steingart v Fong, 156 A.D.3d at 796). The record demonstrates that the father had a demonstrated ability and an expressed interest in the child's medical needs (see Matter of E.D. v D.T., 152 A.D.3d 583, 584), and there is no evidence in the record that called into question the father's ability to make appropriate medical decisions for the child (see Matter of Lopez v Noreiga, 182 A.D.3d 551, 553). In contrast, the mother refused to sign consent forms to enroll the child in therapy, and she testified that she did not believe the child needed therapy despite the child's history of anxiety and nightmares.
However, there is not a sound and substantial basis in the record for the Family Court's determination that the father should also have final decision-making authority with respect to the child's educational needs (see Matter of Massay v Manoyrine, 149 A.D.3d 939, 940-941; Jacobs v Young, 107 A.D.3d 896, 897). The record demonstrates that both parents substantially agreed with each other with respect to the child's educational needs and were both receptive to the recommendations made by the child's teacher. Thus, there is no evidence in the record that called into question the mother's ability to make appropriate decisions regarding the child's education (see Matter of Lopez v Noreiga, 182 A.D.3d at 553).
Contrary to the mother's contentions, the Family Court did not, sua sponte, award the father decision-making authority, as the father's petition seeking sole custody necessarily included decision-making authority (see Trazzera v Trazzera, 199 A.D.3d 855, 858-859).
While the Family Court erred in precluding the mother from offering testimony regarding the father's past instances of domestic violence and substance abuse, since these acts were relevant in determining whether modification of custody was in the child's best interests (see Matter of Gonzalez v Gonzalez, 15 A.D.3d 481, 483), this error was harmless in light of the father's testimony regarding his efforts to rehabilitate himself and the court's acknowledgment that it took these prior acts into consideration when making its determination. Furthermore, if the court erred in taking judicial notice of testimony from a prior hearing, such error was harmless, as there was sufficient evidence to support the court's determination without considering such testimony (see Matter of Patrick M. [Patrick M.M.], 166 A.D.3d 882, 883; Matter of Kinara C. [Jerome C.], 89 A.D.3d 839, 840-841).
Accordingly, we modify the order by deleting the provision thereof granting that branch of the father's petition which was to modify the so-ordered stipulation of custody so as to award him final decision-making authority with respect to the child's educational needs, and substituting therefor a provision denying that branch of the petition.
IANNACCI, J.P., FORD, TAYLOR and LOVE, JJ., concur.