Opinion
8036
01-08-2019
In re XAVIER C., Petitioner–Respondent, v. ARMETHA K., Respondent–Appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. The Law Office of Steven P. Forbes, Jamaica (Steven P. Forbes of counsel), for respondent. Janet Neustaetter, The Children's Law Center, Brooklyn (Eva D. Stain of counsel), attorney for the child.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
The Law Office of Steven P. Forbes, Jamaica (Steven P. Forbes of counsel), for respondent.
Janet Neustaetter, The Children's Law Center, Brooklyn (Eva D. Stain of counsel), attorney for the child.
Renwick, J.P., Manzanet–Daniels, Tom, Mazzarelli, Webber, JJ.
Order, Family Court, Bronx County (Jennifer S. Burtt, Referee), entered on or about February 1, 2018, which, after a hearing, inter alia, granted the father's petition for modification of custody and awarded him physical custody of the subject child and final decision-making authority, unanimously affirmed, without costs.
The Referee's determination that it was in the best interest of the child to modify the custody arrangement and grant physical custody to the father has a sound and substantial basis in the record (see Eschbach v. Eschbach, 56 N.Y.2d 167, 172–173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). The Referee found that the father credibly testified that he had a place for the child in his home, and had a plan for addressing his medical, psychological, dental, and educational needs. The record also showed that by awarding physical custody to the father, the subject child would be living with his biological brother (see id. at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Michael B. [Lillian B.], 145 A.D.3d 425, 430, 42 N.Y.S.3d 141 [1st Dept. 2016] ).Moreover, the record showed that a transfer of physical custody was warranted because the mother discouraged the relationship between the father and the child by misleading the child as to the identity of his biological father and by failing to produce the child for at least three visits (see Sendor v. Sendor, 93 A.D.3d 586, 587, 941 N.Y.S.2d 556 [1st Dept. 2012] ; Matter of Matthew W. v. Meagan R., 68 A.D.3d 468, 468, 891 N.Y.S.2d 30 [1st Dept. 2009] ). The mother also refused to comply with a prior court order granting the father joint legal custody by refusing to provide him with information about the child's education, medical issues and appointments absent further explicit court directive to do so, and by refusing to involve the father in joint decision making with respect to the child (see Moore v. Gonzalez, 134 A.D.3d 718, 719–720, 21 N.Y.S.3d 292 [2d Dept. 2015] ; Arieda v. Arieda–Walek, 74 A.D.3d 1432, 1433, 901 N.Y.S.2d 766 [3d Dept. 2010] ). In addition, the child had numerous absences and was late to school on many occasions, and was not promoted to first grade, while in the mother's care (see Rubin v. Della Salla, 107 A.D.3d 60, 64, 964 N.Y.S.2d 41 [1st Dept. 2013] ; Matter of Farran v. Fenner, 94 A.D.3d 1116, 1117, 943 N.Y.S.2d 173 [2d Dept. 2012] ). Further, the mother failed to explain why she did not address the child's dental health until it became an emergency and he needed to have four teeth extracted (see Rubin, 107 A.D.3d at 64–65, 964 N.Y.S.2d 41 ; Hurlburt v. Behr, 70 A.D.3d 1266, 1268, 897 N.Y.S.2d 271 [3d Dept. 2010], lv dismissed 15 N.Y.3d 943, 915 N.Y.S.2d 214, 940 N.E.2d 919 [2010] ).