Flores v. Mark

• Decision Date: 12 June 2013
• Citation: 107 A.D.3d 796,967 N.Y.S.2d 398,2013 N.Y. Slip Op. 04335
• Parties: In the Matter of Ervin FLORES, respondent, v. Niomee Sonja MARK, appellant. (Proceeding No. 1) In the Matter of Niomee Sonja Mark, appellant, v. Ervin Flores, respondent. (Proceeding No. 2).
• Court: New York Supreme Court — Appellate Division

107 A.D.3d 796

967 N.Y.S.2d 398

2013 N.Y. Slip Op. 04335

In the Matter of Ervin FLORES, respondent,

v.Niomee Sonja MARK, appellant. (Proceeding No. 1)

In the Matter of Niomee Sonja Mark, appellant,

v.Ervin Flores, respondent. (Proceeding No. 2).

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

June 12, 2013.

Mark Diamond, New York, N.Y., for appellant.

Ervin Flores, Brooklyn, N.Y., respondent pro se.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, JEFFREY A. COHEN, and ROBERT J. MILLER, JJ.

In related child custody and family offense proceedings, the mother appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (IDV Part) (Henry, J.), dated November 14, 2011, as, after a hearing, in effect, granted the father's petition to modify a prior order of the same court dated December 2, 2009, awarding the parties joint legal custody of the subject child with primary physical custody to the mother, so as to award the father sole custody of the subject child, and, in effect, granted the father's family offense petition.

ORDERED that the order dated November 14, 2011, is affirmed insofar as appealed from, with costs.

“ ‘A modification of an existing custody arrangement should be allowed only upon a showing of a sufficient change in circumstances demonstrating a real need for a change of custody in order to insure the child's best interests' ” ( Matter of Dorsa v. Dorsa, 90 A.D.3d 1046, 1046, 935 N.Y.S.2d 343, quoting Matter of Nava v. Kinsler, 85 A.D.3d 1186, 1186, 926 N.Y.S.2d 310). “Since weighing the factors relevant to any custody determination requires an evaluation of the credibility and sincerity of the parties involved, the hearing court's findings are accorded deference, and will not be disturbed unless they lack a sound and substantial basis in the record” ( Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273;see Matter of Solovay v. Solovay, 94 A.D.3d 898, 899, 941 N.Y.S.2d 712;Matter of Ross v. Ross, 86 A.D.3d 615, 616, 928 N.Y.S.2d 303).

Here, the Supreme Court's determination that there had been a change in circumstances since the issuance of the prior custody order, and that it was in the child's best interests to modify that order so as to, inter alia, award the father sole custody of the subject child, has a sound and substantial basis in the record. The evidence presented at the hearing demonstrates that the relationship between the parties has become so antagonistic that they are unable to communicate or cooperate on matters concerning the subject child. Thus, joint custody was no longer an appropriate arrangement in this case ( see Bliss v. Ach, 56 N.Y.2d 995, 998, 453 N.Y.S.2d 633, 439 N.E.2d 349;Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019;Matter of Solovay v. Solovay, 94 A.D.3d at 899, 941 N.Y.S.2d 712). Further, the hearing testimony supports the Supreme Court's finding that the mother willfully interfered with the father's right to visitation ( see Matter of Ross v. Ross, 68 A.D.3d 878, 878, 890 N.Y.S.2d 127;Matter of Weinberg v. Weinberg, 52 A.D.3d 616, 617, 861 N.Y.S.2d 70;Matter of King v. King, 225 A.D.2d 697, 698, 639 N.Y.S.2d 465). Additionally, the independent forensic evaluator opined that the mother had anger management issues and that the father is more likely to foster a relationship between the subject child and the noncustodial parent ( see Matter of Caravella v. Toale, 78 A.D.3d 828, 828, 911 N.Y.S.2d 162;Matter of King v. King, 225 A.D.2d at 698, 639 N.Y.S.2d 465). Accordingly, we decline to disturb the Supreme Court's award of sole custody of the child to the father with visitation to the mother.

Further, the mother's contention that the Supreme Court erred in failing to take into account certain recommendations made by the forensic evaluator is without merit. In reaching its determination, the Supreme Court was “not required to accept the recommendation of the court-appointed forensic psychologist ( see Bruno v. Bruno, 47 A.D.3d 606, 849 N.Y.S.2d 598;Matter of Kelly v. Hickman, 44 A.D.3d 941, 844 N.Y.S.2d 124;Matter of Griffin v. Scott, 303 A.D.2d 504, 756 N.Y.S.2d 437), as such recommendations are merely additional factors to be considered since ‘they are not determinative and do not usurp the judgment of the trial judge’ ( Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 917, 830 N.Y.S.2d 557...