Benjamin V. v. Shantika W.

• Decision Date: 28 July 2022
• Docket Number: 534137
• Parties: In the Matter of BENJAMIN V., Appellant, v. SHANTIKA W., Respondent.
• Court: New York Supreme Court — Appellate Division

207 A.D.3d 1017

172 N.Y.S.3d 529

In the Matter of BENJAMIN V., Appellant,

v.SHANTIKA W., Respondent.

534137

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 31, 2022

Decided and Entered: July 28, 2022

Lindsay H. Kaplan, Kingston, for appellant.

Constantina Hart, Kauneonga Lake, for respondent.

Betty J. Potenza, Highland, attorney for the children.

Before: Garry, P.J., Egan Jr., Clark, Aarons and McShan, JJ.

MEMORANDUM AND ORDER

Clark, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.), entered September 27, 2021, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of two daughters (born in 2010 and 2012). In early 2017, the mother and the children relocated from Ulster County to Bethlehem, Pennsylvania without the father's consent, prompting the father to file a petition seeking an initial determination on the issues of custody and parenting time. In an order entered in July 2017 upon the parties’ consent, the parents were awarded joint legal custody of the children, with primary physical custody to the mother and parenting time to the father every other weekend from Friday at 8:30 p.m. through Sunday at 5:30 p.m., as well as any additional time upon which the parents could agree. In September 2019, based upon concerns over the mother's alcohol abuse, the father commenced this Family Ct Act article 6 modification proceeding seeking sole legal and primary physical custody of the children. In July 2020, while they were in the father's care for an extended period of time over the summer, the children exhibited concerning behavior, which resulted in the father amending his petition¹ and moving, by order to show cause, for emergency relief. Given the nature of the father's allegations, Family Court conducted an emergency virtual hearing, after which it temporarily awarded the father sole legal and primary physical custody of the children and provided the mother with four hours of weekly parenting time in New York. Upon receiving temporary full custody, the father voluntarily engaged in preventative services through the Ulster County Department of Social Services, enrolled the children in mental health counseling and began a parenting class.

In September 2021, following a lengthy, virtual fact-finding hearing that concluded in June 2021, Family Court awarded the mother sole legal and primary physical custody of the children, but put numerous conditions in place, including that the mother continue the children in counseling, ensure that the children are not exposed to any acts of domestic violence, avoid intoxication "at any time that she is caring for [the] children" and "require that her local [s]ocial [s]ervices office [in Pennsylvania] open a preventative case for [the] children." As for the father, Family Court granted him six hours of biweekly, supervised parenting time with the children, as well as "access to all of the children's medical, educational records and access to any professionals providing the children with medical, educational, or counseling services." Family Court directed that the father shall pick the children up at the mother's home in Pennsylvania and return the children to the mother's home at the end of his parenting time. The father appeals,² arguing that Family Court's determination is not supported by a sound and substantial basis in the record.³

The parties do not dispute that there has been a change in circumstances since entry of the July 2017 order and, thus, we focus our inquiry on whether Family Court's custody and parenting time determinations serve the best interests of the children (see Matter of Christie BB. v. Isaiah CC., 194 A.D.3d 1130, 1131, 149 N.Y.S.3d 280 [2021] ; Matter of Clayton J. v. Kay–Lyne K., 185 A.D.3d 1243, 1244, 127 N.Y.S.3d 641 [2020] ). In determining the children's best interests, Family Court must consider, among other factors, "the quality of the parents’ respective home environments, the need for stability in the children's lives, each parent's willingness to promote a positive relationship between the children and the other parent and each parent's past performance, relative fitness and ability to provide for the children's intellectual and emotional development and overall well-being" ( Matter of Jessica HH. v. Sean HH., 196 A.D.3d 750, 753, 151 N.Y.S.3d 449 [2021] [internal quotation marks, brackets and citations omitted]; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). We accord "great deference to Family Court's factual findings and credibility determinations, which will not be disturbed if they have a sound and substantial basis in the record" ( Matter of Richard GG. v. M. Carolyn GG., 169 A.D.3d 1169, 1171, 94 N.Y.S.3d 644 [2019] ; see Matter of Charity K. v. Sultani L., 202 A.D.3d 1346, 1347–1348, 164 N.Y.S.3d 250 [2022] ).

This case presents one of those difficult instances in which Family Court was "faced with the most imperfect of choices" in determining which custodial arrangement served the children's best interests ( Hanna v. Hanna, 267 A.D.2d 903, 904, 700 N.Y.S.2d 532 [1999], lv dismissed 94 N.Y.2d 943, 709 N.Y.S.2d 501, 731 N.E.2d 157 [2000] ). To start, the parents’ palpable animosity toward one another rendered an award of joint legal custody infeasible (see Matter of Jennifer D. v. Jeremy E., 172 A.D.3d 1556, 1557, 100 N.Y.S.3d 404 [2019] ; Matter of Grant v. Grant, 47 A.D.3d 1027, 1028, 849 N.Y.S.2d 341 [2008] ). Additionally, the evidence credited by Family Court established that there were genuine concerns regarding each parent (see Matter of Gary J. v. Colleen L., 288 A.D.2d 720, 721, 732 N.Y.S.2d 731 [2001] ). Indeed, the evidence demonstrated that, among other things, the mother struggled with issues of alcohol abuse, failed to acknowledge or address the children's sexualized behavior and had a history of violating court orders. As for the father, Family Court credited testimony that, more than 30 years ago, during his teenage years, the father repeatedly engaged in sexual acts with his niece when she was under the age of 10.

Notwithstanding the mother's issues, the evidence demonstrated that the mother has been the children's primary caregiver and that she fiercely loves her children. Additionally, as set forth in a letter from a protective services caseworker in Northampton County, Pennsylvania, where the mother resides, the mother's home was clean and did not present any apparent safety concerns. Furthermore, the children have relatives in Pennsylvania, including their maternal half sibling and maternal grandmother, who live nearby and have provided a supportive environment for the children. Finally, although Family Court did not conduct a Lincoln hearing, various witnesses testified to the children's desire to live with the mother.⁴ Deferring to Family Court's credibility determinations, given the foregoing evidence, there is a sound and substantial basis in the record to support Family Court's determination that an award of sole legal and primary physical custody to the mother was in the best interests of the children (see Matter of Frize v. Frize, 266 A.D.2d 753, 755, 698 N.Y.S.2d 764 [1999] ).

We, however, reach an opposite conclusion with respect to Family Court's determination to limit the father to six hours of supervised parenting time in Pennsylvania every other week. In so concluding, we emphasize that "[t]he best interests of the children generally lie with a healthy, meaningful relationship with both parents" ( Matter of Williams v. Patinka, 144 A.D.3d 1432, 1433, 42 N.Y.S.3d 404 [2016] ; see Matter of Spoor v. Carney, 149 A.D.3d 1209, 1211, 51 N.Y.S.3d 256 [2017] ) and that expanded parenting time is generally favored, unless there is proof that such parenting time would be inimical to the welfare of the children (see Matter of Beeken v. Fredenburg, 145 A.D.3d 1394, 1396, 44 N.Y.S.3d 259 [2016] ; Matter of Fish v. Fish, 112 A.D.3d 1161, 1162–1163, 976 N.Y.S.2d 727 [2013] ).

Here, Family Court's determination to limit the father's parenting time was based entirely on the sexual abuse allegations made against the father by his niece, which occurred nearly 30 years ago. However, there was no evidence establishing that the father had any inappropriate sexual contact with either of the children (see Matter of Johnson v. Johnson, 13 A.D.3d 678, 678–679, 785 N.Y.S.2d 353 [2004] ). Nor was there any evidence that the father had engaged in or been accused of engaging in sexual misconduct toward the children's half siblings, both of whom had previously lived with the father for a period of time.

Additionally, none of the parties advocated for supervised parenting time to the father or otherwise opposed a schedule of expanded parenting time (see generally Matter of Beeken v. Fredenburg, 145 A.D.3d at 1397, 44 N.Y.S.3d 259 ). Indeed, although the mother introduced evidence of the prior sex abuse allegations during her case-in-chief, she...