Opinion
No. 562 CAF 23-01668
09-27-2024
IN THE MATTER OF KARLIL WILLIAMS, PETITIONER-APPELLANT, v. JULIE GRAU, RESPONDENT-RESPONDENT. IN THE MATTER OF JULIE GRAU, PETITIONER-RESPONDENT, v. KARLIL WILLIAMS, RESPONDENT-APPELLANT.
THOMAS L. PELYCH, HORNELL, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT. PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT. STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILD.
THOMAS L. PELYCH, HORNELL, FOR PETITIONER-APPELLANT AND RESPONDENT-APPELLANT.
PETER J. DIGIORGIO, JR., UTICA, FOR RESPONDENT-RESPONDENT AND PETITIONER-RESPONDENT.
STEPHANIE N. DAVIS, OSWEGO, ATTORNEY FOR THE CHILD.
PRESENT: WHALEN, P.J., LINDLEY, OGDEN, GREENWOOD, AND KEANE, JJ.
Appeal from an order of the Family Court, Lewis County (Daniel R. King, J.), entered August 21, 2023, in a proceeding pursuant to Family Court Act article 6. The order, among other things, granted sole legal custody and primary residency of the subject child to respondent-petitioner.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to article 6 of the Family Court Act, petitioner-respondent father appeals from an order that, inter alia, modified the parties' prior order of custody and parenting time by awarding sole legal custody and primary residency of the subject child to respondent-petitioner mother.
The father contends that the mother did not adequately plead a change in circumstances in her petition for modification of the prior order. That contention, raised for the first time on appeal, is not properly before this Court (see Matter of Sierak v Staring, 124 A.D.3d 1397, 1398 [4th Dept 2015]). In any event, the mother adequately pleaded a change in circumstances by alleging that the father "repeatedly and consistently neglected to exercise his right to full [parenting time]" (Matter of Kriegar v McCarthy, 162 A.D.3d 1560, 1560 [4th Dept 2018]) and that he was unable to communicate effectively with her (see Matter of Spiewak v Ackerman, 88 A.D.3d 1191, 1192 [3d Dept 2011]; see generally Matter of Melish v Rinne, 221 A.D.3d 1560, 1561 [4th Dept 2023]).
We reject the father's contention that Family Court erred in granting sole legal custody and primary residency to the mother, thereby significantly reducing his parenting time. Here, "the evidence at the hearing established that the parties have an acrimonious relationship and are not able to communicate effectively with respect to the needs and activities of their child[ ], and it is well settled that joint custody is not feasible under those circumstances" (Matter of Capobianco v Capobianco, 162 A.D.3d 1570, 1570 [4th Dept 2018], lv denied 32 N.Y.3d 905 [2018] [internal quotation marks omitted]; see Matter of Mattice v Palmisano, 159 A.D.3d 1407, 1408 [4th Dept 2018], lv denied 31 N.Y.3d 909 [2018]). We conclude that there is a sound and substantial basis in the record for the court's determination that an award of sole legal custody and primary residency to the mother with parenting time to the father was in the child's best interests, and we therefore decline to disturb that determination (see generally Matter of Russell v Russell, 173 A.D.3d 1607, 1609 [4th Dept 2019]; Matter of Thayer v Ennis, 292 A.D.2d 824, 825 [4th Dept 2002]).