Opinion
8712
03-14-2019
In re ELISA N., Petitioner–Respondent, v. YOAV I., Respondent–Appellant.
Bruce A. Young, New York, for appellant. Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Bruce A. Young, New York, for appellant.
Dawne A. Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Richter, J.P., Gische, Kern, Moulton, JJ.
Order, Family Court, New York County (Susan M. Doherty, Referee), entered on or about January 20, 2016, insofar as it granted petitioner mother's summary judgment motion and petition to modify a prior custody order, and awarded her sole custody of the subject children, unanimously affirmed, without costs.
A motion for summary judgment may be utilized in proceedings under Family Court Act article 6 (see Matter of Suffolk County Dept. of Social Servs. v. James M. , 83 N.Y.2d 178, 182–183, 608 N.Y.S.2d 940, 630 N.E.2d 636 [1994] ). The motion should only be granted when there are no material facts disputed sufficiently to warrant a trial (see Matter of Singer v. Levitt , 65 A.D.3d 634, 883 N.Y.S.2d 728 [2d Dept. 2009] ). The Family Court providently exercised its discretion in allowing the mother to file a late motion for summary judgment and did not err in granting her application ( Goodman v. Gudi , 264 A.D.2d 758, 695 N.Y.S.2d 576 [2nd Dept. 1999] ).
Contrary to the father's contention, the court properly determined that a full plenary hearing was not required because it possessed ample information to render an informed decision on the children's best interests and because the father offered no proof that he was in compliance with his treatment of his mental health issue (see Matter of Martha V. v. Tony R. , 151 A.D.3d 653, 54 N.Y.S.3d 580 [1st Dept. 2017] ; Matter of Tony R. v. Stephanie D. , 146 A.D.3d 691, 45 N.Y.S.3d 463 [1st Dept. 2017] ; Matter of Fayona C. v. Christopher T. , 103 A.D.3d 424, 959 N.Y.S.2d 183 [1st Dept. 2013] ). Both parties and the attorney for the children were provided an opportunity to present their positions, and the court made the factual basis for its determination clear on the record.
Further, the court's decision to modify custody based on a change in circumstances and the best interests of the children has a sound and substantial basis in the record. Contrary to the father's contention, the neglect finding against him constituted a change in circumstances warranting a modification of the prior custody arrangement ( Matter of Zen'Nya G. [Nina W.] , 126 A.D.3d 566, 3 N.Y.S.3d 577 [1st Dept. 2015] ; Matter of Gabriel J. [Dainee A.] , 100 A.D.3d 572, 573, 955 N.Y.S.2d 18 [1st Dept. 2012] ). Moreover, in October 2014, following a full hearing, the court made an award of custody to the mother, with supervised visitation to the father. The court indicated that supervision would be without end unless the father could demonstrate that he was receiving treatment for his mental illness within the next six months. There is no dispute that he did not get such treatment and that the safety risk to the children has not been mitigated since then.
The Family Court properly determined that supervision of the father's visits was in the children's best interests, particularly given the evidence of the father's persistent noncompliance with treatment for his mental illness and his threats to harm the children, which placed the children at risk (see Braverman v. Braverman, 140 A.D.3d 413, 33 N.Y.S.3d 39 [1st Dept. 2016], lv denied 28 N.Y.3d 910, 47 N.Y.S.3d 225, 69 N.E.3d 1021 [2016] ; Matter of Arelis Carmen S. v. Daniel H. , 78 A.D.3d 504, 911 N.Y.S.2d 49 [1st Dept. 2010], lv denied 16 N.Y.3d 707, 920 N.Y.S.2d 780, 945 N.E.2d 1031 [2011] ).
We have considered the father's remaining contentions and find them unavailing.