Fitzgerald v. Fitzgerald

• Decision Date: 01 May 2019
• Docket Number: 2018–03725,Docket No. V–10382–07
• Citation: 172 A.D.3d 713,97 N.Y.S.3d 499 (Mem)
• Court: New York Supreme Court — Appellate Division
• Parties: In the Matter of Nicole FITZGERALD, Respondent, v. David FITZGERALD, Appellant.

172 A.D.3d 713

97 N.Y.S.3d 499 (Mem)

In the Matter of Nicole FITZGERALD, Respondent,

v.David FITZGERALD, Appellant.

2018–03725

Docket No. V–10382–07

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

Submitted—March 15, 2019

May 1, 2019

Helene M. Greenberg, Elmsford, NY, for appellant.

Legal Services of the Hudson Valley, Yonkers, N.Y. (Daniela Israelov of counsel), for respondent.

Theoni Stamos–Salotto, Hopewell Junction, NY, attorney for the child.

WILLIAM F. MASTRO, J.P., JOHN M. LEVENTHAL, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Westchester County (IDV part) (Thomas R. Daly, J.), entered March 8, 2018. The order, after a hearing, in effect, granted the mother's petition to modify a prior order of custody and parental access dated September 12, 2008, so as to suspend parental access between the father and the parties' child.

ORDERED that the order entered March 8, 2018, is affirmed, without costs or disbursements.

The father appeals from an order entered March 8, 2018, which, after a hearing, and after the Family Court conducted in camera interviews of the parties' child, in effect, granted the mother's petition to modify a prior order of custody and parental access dated September 12, 2008, so as to suspend parental access between the father and the parties' child.

A party seeking modification of an existing order of custody or parental access must demonstrate that there has been a change in circumstances such that modification is required to protect the best interests of the child (see Matter of Granzow v. Granzow , 168 A.D.3d 1049, 1050, 93 N.Y.S.3d 115 ; Matter of Gonzalez v. Santiago , 167 A.D.3d 885, 887, 90 N.Y.S.3d 137 ; Matter of McKenzie v. Williams , 165 A.D.3d 673, 674, 85 N.Y.S.3d 205 ). The best interests of the child are determined based upon a review of the totality of the circumstances (see Eschbach v. Eschbach , 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Granzow v. Granzow , 168 A.D.3d at 1050, 93 N.Y.S.3d 115 ; Matter of Gonzalez v. Santiago , 167 A.D.3d at 887, 90 N.Y.S.3d 137 ). While not necessarily determinative, the child's expressed preference is some indication of what is in the child's best interests (see Eschbach v. Eschbach , 56 N.Y.2d at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Cervera v. Bressler , 90 A.D.3d 803, 806, 934 N.Y.S.2d 500 ).

" ‘[A] noncustodial parent should have reasonable rights of [parental access], and the denial of those rights to a natural parent is a drastic remedy which should only be invoked when there is substantial evidence that [parental access] would be detrimental to the child’ " ( Cervera v. Bressler , 90 A.D.3d at 806, 934 N.Y.S.2d 500, quoting Matter of Mera v. Rodriguez , 73 A.D.3d 1069, 1069, 899 N.Y.S.2d 893 ; see Matter of Lupo v. Rainsford , 162 A.D.3d 1032, 1033, 80 N.Y.S.3d 140 ). Since any determination related to custody and parental access depends upon the hearing court's assessment of the credibility of the witnesses and of the character, temperament, and sincerity of the parties, its findings are generally accorded great respect and will not be disturbed unless they lack a sound and substantial basis in the record (see Weisberger v. Weisberger , 154 A.D.3d 41, 51, 60 N.Y.S.3d 265 ; Matter of Nixon v. Ferrone , 153 A.D.3d 625, 627, 60 N.Y.S.3d 256 ; Matter of Sanders v. Jaco , 148 A.D.3d 812, 814, 48 N.Y.S.3d 729 ).

Here, contrary to the father's contention, the mother met her burden of...