Nieves v. Nieves, 2018–09892

• Decision Date: 09 October 2019
• Docket Number: 2018–09892,Docket Nos. V–14195–14, V–17378–14
• Citation: 111 N.Y.S.3d 673,176 A.D.3d 824
• Parties: In the Matter of Nicole NIEVES, Appellant, v. Dennis NIEVES, Respondent. (Proceeding No. 1) In the Matter of Dennis Nieves, Jr., Respondent, v. Nicole Marie Nieves, Appellant. (Proceeding No. 2)
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 824

111 N.Y.S.3d 673

In the Matter of Nicole NIEVES, Appellant,

v.Dennis NIEVES, Respondent. (Proceeding No. 1)

In the Matter of Dennis Nieves, Jr., Respondent,

v.Nicole Marie Nieves, Appellant. (Proceeding No. 2)

2018–09892

Docket Nos. V–14195–14, V–17378–14

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

Argued—September 9, 2019

October 9, 2019

Kreuza Ganolli, Brooklyn, NY, for appellant.

Heath J. Goldstein, Jamaica, NY, for respondent.

Janet Neustaetter, Brooklyn, N.Y. (Nesta N. Johnson and Martha Schneiderman of counsel), attorney for the child.

CHERYL E. CHAMBERS, J.P., JOSEPH J. MALTESE, HECTOR D. LASALLE, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In related proceedings pursuant to Family Court Act article 6, the mother appeals from an order of the Family Court, Kings County (Judith D. Waksberg, J.), dated August 9, 2018. The order, after a hearing, denied the mother's petition for sole legal and physical custody of the parties' child and granted the father's petition for sole legal and physical custody of the child.

ORDERED that the order is affirmed, without costs or disbursements.

The mother and the father have one child together, who was born in 2009. While the father was an active duty member of the U.S. Army and was stationed in and deployed to various locations, the child lived with the mother and had limited contact with the father. In 2012, the father was stationed in Florida. The mother moved with the child to Italy in March 2012 and lived there with the child for approximately 1½ years, returning to New York in September 2013. The move to Italy interfered with the father's parental access with the child. In 2015, the father was granted a disability discharge.

In 2014, the mother and the father each petitioned for sole legal and physical custody of the child. They were divorced in 2015, and both subsequently remarried. The father remained in Florida with his new wife. In 2017, during the course of the hearing on the petitions, the mother and her new husband (hereinafter the stepfather), who had joined the U.S. Army as an active duty member, moved to Texas, where the stepfather had been stationed.

In September 2016, a court-appointed forensic evaluator prepared a forensic evaluation, noting extensive evidence that the mother and the stepfather had engaged in behavior intended to alienate the child from the father. Despite this evidence, as well as other concerns regarding the mother's parenting, the forensic evaluator recommended against awarding custody to the father on the ground that it would be "devastat[ing]" to the child. Over the course of the hearing, which concluded in August 2018, almost two years after the forensic evaluation, the father had ongoing therapeutic parental access with the child via FaceTime and Skype, facilitated by a social worker. The child also spent school vacations, including entire summers, with the father. The mother consistently resisted the father's parental access, and the father was repeatedly required to seek court assistance to enforce his access.

After a hearing and an in camera interview with the child, the Family Court concluded that despite the forensic evaluator's recommendation, subsequent events warranted awarding sole custody to the father on the ground, among others, that he was better able to foster the child's relationship with the noncustodial parent. In an order dated August 9, 2018, the court denied the mother's petition for sole legal and physical custody of the child and granted the father's petition for sole legal and physical custody. The mother appeals.

"[T]he court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child" ( Matter of Demelfi v. Fliedner, 172 A.D.3d 1206, 1207, 102 N.Y.S.3d 204 [internal quotation marks omitted]; see Matter of Saunders v. Scott, 172 A.D.3d 724, 726, 100 N.Y.S.3d 40 ). Among the factors to be considered are "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" ( Matter of Saunders v. Scott, 172 A.D.3d at 726, 100 N.Y.S.3d 40 [internal quotation marks omitted]; see Matter of McLennan v. Gordon, 122 A.D.3d 742, 996 N.Y.S.2d 339 ). "The existence or absence of any one factor in determining custody cannot be determinative on appellate review since the court is to consider the totality of the circumstances" ( Matter of Cooper v. Nicholson, 167 A.D.3d 602, 604, 89 N.Y.S.3d 243 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Tumanova v. Ali, 164 A.D.3d 1247, 1248, 83 N.Y.S.3d 204 ).

The recommendation of a forensic evaluator is but one factor to be considered in making a custody determination (see Cunningham v. Brutman, 150 A.D.3d 815, 816, 55 N.Y.S.3d 269 ; Matter of Kozlowski v. Mangialino, 36 A.D.3d 916, 917, 830 N.Y.S.2d 557 ). It is not determinative and does not usurp the judgment of the court (see Cunningham v. Brutman, 150 A.D.3d at 816 ; Matter of Kozlowski v. Mangialino, 36 A.D.3d at 917, 830 N.Y.S.2d 557).

" ‘[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the child[ ] and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the child[ ] and the other parent is a factor to be considered in making a custody determination’ " ( Matter of Khan–Soleil v. Rashad, 111 A.D.3d 728, 729, 978 N.Y.S.2d 226, quoting Matter of Vasquez v. Ortiz, 77 A.D.3d 962, 962, 909 N.Y.S.2d 155 ; see Matter of Renee P.-F. v. Frank G., 161 A.D.3d 1163, 1166, 79 N.Y.S.3d 45 ). In contrast, " ‘[w]illful interference with a noncustodial parent's right to [parental access] is so inconsistent with the best...