Gordon v. Ngoun
| Docket Number | 2022-01183,Docket No. V-12787-18 |
| Decision Date | 12 July 2023 |
| Citation | 2023 NY Slip Op 03786 |
| Parties | In the Matter of Ivan Gordon, appellant, v. Bopha Ngoun, respondent. |
| Court | New York Supreme Court — Appellate Division |
Heath J. Goldstein, Jamaica, NY, for appellant.
Michael E. Lipson, Jericho, NY, for respondent.
Terrence J. Worms, Flushing, NY, attorney for the child.
ANGELA G. IANNACCI, J.P. PAUL WOOTEN HELEN VOUTSINAS LILLIAN WAN JJ.
DECISION & ORDER
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Queens County (Margaret M. Mulrooney, Ct. Atty. Ref.), dated February 10 2022. The order, insofar as appealed from, (1) denied that branch of the father's motion which was to vacate an order of custody and parental access of the same court dated December 9, 2021, made upon the father's default in appearing at trial, awarding the mother sole legal and physical custody of the subject child, and (2) granted that branch of the father's motion which was, in effect, to modify the order of custody and parental access dated December 9, 2021, only to the extent of awarding him parental access on alternate Saturdays and Sundays and on Father's Day from 10:00 a.m. to 6:00 p.m.
ORDERED that the order dated February 10, 2022, is affirmed insofar as appealed from, without costs or disbursements.
The subject child was born to the parties in 2017. In 2018, following the parties' separation, the mother filed a petition for legal and physical custody of the child. Prior to a trial on the mother's petition, the father elected to represent himself. At the commencement of a virtual trial on December 9, 2021, the Family Court denied the father's motion for assignment of counsel. The father then refused to participate and left the virtual trial, which was conducted in his absence. In an order of custody and parental access dated December 9, 2021, made after the trial, the court awarded sole legal and physical custody of the child to the mother, without awarding any parental access to the father.
In December 2021, the father moved to vacate the order of custody and parental access dated December 9, 2021, or, in the alternative, in effect, to modify that order so as to award him parental access with the child on Wednesdays from 2:38 p.m. to 7:00 p.m., and on alternating Saturdays and Sundays from 10:00 a.m. to 7:00 p.m. In an order dated February 10, 2022, the Family Court denied that branch of the father's motion which was to vacate the order dated December 9, 2021, and granted that branch of his motion which was, in effect, to modify that order only to the extent of awarding him parental access on alternate Saturdays and Sundays and on Father's Day from 10:00 a.m. to 6:00 p.m. The father appeals.
On a motion to vacate an order entered upon a party's default the defaulting party "must demonstrate a reasonable excuse for the failure to appear and a potentially meritorious defense to the relief sought in the petition" (Matter of Goldstein v...
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