Emiko C. v. Christopher P.

• Decision Date: 30 March 2021
• Docket Number: 13462,Index No. 308611/15,Case No. 2019-381
• Citation: 192 A.D.3d 627,145 N.Y.S.3d 36
• Parties: EMIKO C., Plaintiff–Appellant, v. CHRISTOPHER P., Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

192 A.D.3d 627

145 N.Y.S.3d 36

EMIKO C., Plaintiff–Appellant,

v.CHRISTOPHER P., Defendant–Respondent.

13462

Index No. 308611/15

Case No. 2019-381

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

ENTERED March 30, 2021

Steven D. Kommor, P.C., Melville (Steven D. Kommor of counsel), for appellant.

Brian D. Perskin & Associates P.C., Brooklyn (Evan S. Seckular of counsel), for respondent.

Steven P. Forbes, Jamaica, attorney for the child.

Gische, J.P., Singh, Scarpulla, Mendez, JJ.

Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered on or about January 11, 2018, which, after a custody trial, denied plaintiff mother's request to relocate with the subject child, awarded defendant father sole legal and physical custody, and set a parental access schedule, unanimously affirmed, without costs.

The determination that an award of sole legal and physical custody to defendant would serve the best interests of the child has a sound and substantial basis in the record (see Matter of David J.B. v. Monique H., 52 A.D.3d 414, 861 N.Y.S.2d 330 [1st Dept. 2008] ). The child had lived primarily with defendant since 2015, and defendant had taken care of the child's physical, emotional, educational, material, and medical needs (see Matter of Deanna V. v. Michael C., 179 A.D.3d 445, 446, 117 N.Y.S.3d 189 [1st Dept. 2020] ; see generally Eschbach v. Eschbach, 56 N.Y.2d 167, 172–74, 451 N.Y.S.2d 658, 436 N.E.2d 1260 [1982] ). Plaintiff had violated court orders, refused to pay defendant temporary child support or contribute to the child's add-on expenses, and failed to arrange visitation with the child in the five months preceding the trial. Plaintiff also surreptitiously took the child to see a therapist in California despite the child's ongoing relationship with a therapist in New York, and the visit resulted in an investigation by the Administration for Children's Services of a complaint alleging abuse against defendant that was deemed unfounded. The record also supports the court's consideration of the possibility of parental alienation by plaintiff as an additional factor in favor of granting custody to defendant (see Matter of Tyrone G. v. Lucretia S., 4 A.D.3d 205, 771 N.Y.S.2d 645 [1st Dept. 2004] ).

The court properly denied plaintiff's request to relocate the child to California since she failed to demonstrate that such a move would be in the child's best interests and provide a benefit sufficient to outweigh the detrimental impact on the...