Opinion
12476 Dkt. No. V-331-17/17A V-331-17/17B V-332-17/17A Case No. 2019-05388
11-24-2020
In re STEPAN K., Petitioner–Respondent, v. MARINA M., Respondent–Appellant.
Steven P. Forbes, Jamaica, for appellant. Tsiring & Feldman, P.C., Brooklyn (Galina Feldman of counsel), for respondent. Karen Freedman, Lawyers for Children, New York (Shirim Nothenberg of counsel), attorney for the child.
Steven P. Forbes, Jamaica, for appellant.
Tsiring & Feldman, P.C., Brooklyn (Galina Feldman of counsel), for respondent.
Karen Freedman, Lawyers for Children, New York (Shirim Nothenberg of counsel), attorney for the child.
Renwick, J.P., Kapnick, Gesmer, Kern, JJ.
Order, Supreme Court, New York County (Tandra L. Dawson, J.), entered on or about June 11, 2019, which, to the extent appealed from as limited by the briefs, upon petitioner father's motion for modification of custody, after a trial, awarded the father legal and primary residential custody of the subject child, unanimously affirmed, without costs.
The record supports the court's determination that circumstances had changed since 2015, when the parties entered into an agreement pursuant to which the mother had custody, that therefore modification of custody was warranted, and that an award of custody to the father was in the child's best interests (see Matter of Santiago v. Halbal, 88 A.D.3d 616, 932 N.Y.S.2d 32 [1st Dept. 2011] ; Matter of Isaac C. v. Veronica R., 18 A.D.3d 327, 794 N.Y.S.2d 647 [1st Dept. 2005] ; see also Matter of Nehra v. Uhlar, 43 N.Y.2d 242, 248, 401 N.Y.S.2d 168, 372 N.E.2d 4 [1977] ).
There is no basis for disturbing the court's determination that the father testified credibly that the mother violated the 2015 agreement by refusing to share information about the child's school, traveling with the child for extended periods without informing him or ensuring that he could communicate with the child, and otherwise making it difficult or impossible for him to see the child. This testimony is particularly credible in light of the extreme steps the mother has taken in an effort to interfere with his access: filing reports, which she does not deny are untrue, that he sexually abused the child and that he committed violence against her.
There is no basis for disturbing the court's determination that the mother's testimony about the father's ongoing indifference as a parent was not credible and that the father testified credibly that he had wanted to be more involved but was thwarted by the mother and that he had been taking good care of the child in the years since he was awarded temporary custody. These credibility determinations are entitled to great deference on appeal ( Matter of Lisa W. v. John M., 142 A.D.3d 879, 38 N.Y.S.3d 148 [1st Dept. 2016], lv denied 28 N.Y.3d 912, 2017 WL 53563 [2017] ).
In view of the foregoing, the court properly determined that awarding custody to the father was in the best interests of the child. As indicated, the court credited the father's testimony that he was taking good care of the child, and the mother offers no basis for questioning that determination. Moreover, insofar as the mother was willing to resort to filing false reports against the father in an effort to interfere with his relationship with the child, the court's determination that the mother is not fit to be the custodial parent is amply supported (see Matter of Johnell E.K. v. Fatima T., 184 A.D.3d 423, 123 N.Y.S.3d 485 [1st Dept. 2020] ; Matter of Oscar S. v. Joyesha J., 149 A.D.3d 439, 52 N.Y.S.3d 28 [1st Dept. 2017] ; Matter of Penny B. v. Gary S., 61 A.D.3d 589, 878 N.Y.S.2d 307 [1st Dept. 2009], lv denied 13 N.Y.3d 705, 2009 WL 2924252 [2009] ). In contrast, the father acknowledged the importance of the child's relationship with the mother and testified that he would continue to support that relationship (see Karlsson v. Karlsson, 145 A.D.3d 639, 42 N.Y.S.3d 809 [1st Dept. 2016] ).
We have considered the mother's remaining arguments and find them unavailing.