Opinion
2012-02-28
Leroy D. WEST, Sr., Petitioner–Appellant, v. Racquel VANDERHORST, Respondent–Respondent.
Norman A. Olch, New York, for appellant. Brian K. Robinson, New York, for respondent.
Norman A. Olch, New York, for appellant. Brian K. Robinson, New York, for respondent. Rosemary Rivieccio, New York, attorney for the child.MAZZARELLI, J.P., ANDRIAS, CATTERSON, ABDUS–SALAAM, MANZANET–DANIELS, JJ.
Order, Family Court, Bronx County (Elizabeth Barnett, Referee), entered on or about April 22, 2010, which, after a trial, among other things, awarded respondent mother sole legal and physical custody of the parties' child, with visitation to petitioner father, unanimously affirmed, without costs.
The Referee's determination, that it was in the child's best interests to modify the parties' joint custody agreement and award respondent sole legal and physical custody, has a sound and substantial basis in the record ( Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Indeed, the record shows that, following entry of the parties' judgment of divorce, which incorporated their stipulation providing for joint custody, there was a complete breakdown in communication between the parties and an incident of domestic violence in the child's presence, thereby rendering joint custody infeasible ( see Trapp v. Trapp, 136 A.D.2d 178, 181, 136 A.D.2d 178, 526 N.Y.S.2d 95 [1988] ). The record also shows that petitioner violated the parties' stipulation by prohibiting respondent from contacting the child when he was with petitioner, and twice refused to alert respondent to the fact that the child had been hospitalized. Accordingly, unlike respondent, petitioner's conduct and attitude indicated an unwillingness to support and encourage a relationship between the child and respondent ( see Gregory L.B. v. Magdelena G., 68 A.D.3d 478, 479, 888 N.Y.S.2d 885 [2009] ). The Referee also properly determined that relocation to respondent's home in New Jersey, which was permitted under the parties' stipulation, and modification of petitioner's visitation schedule, was in the child's best interests ( see Matter of Lionel E. v. Shaquana R.B., 73 A.D.3d 434, 434, 901 N.Y.S.2d 181 [2010] ). Contrary to petitioner's contention, the parties' stipulation does not require the child to attend a religious school.