Pierce v. Caputo

• Docket Number: 2022-06386, 2022-06387,Docket Nos. V-6918-14/15B, V-6918-14/16D, V-6918-14/16E, V-6918-14/18F
• Decision Date: 22 March 2023
• Citation: 214 A.D.3d 877,185 N.Y.S.3d 283
• Parties: In the Matter of Kent PIERCE, respondent, v. Heather CAPUTO, appellant.
• Court: New York Supreme Court — Appellate Division

214 A.D.3d 877
185 N.Y.S.3d 283

In the Matter of Kent PIERCE, respondent,
v.
Heather CAPUTO, appellant.

2022-06386, 2022-06387
Docket Nos. V-6918-14/15B, V-6918-14/16D, V-6918-14/16E, V-6918-14/18F

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

Argued—February 14, 2023
March 22, 2023

185 N.Y.S.3d 285

Feldman & Feldman, Manhasset, NY (Steven A. Feldman and Arza Feldman of counsel), for appellant.

Gregory Rabinowitz, P.C., Jericho, NY, for respondent.

Victoria L. Dow, Riverhead, NY, attorney for the child.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, PAUL WOOTEN, HELEN VOUTSINAS, JJ.

DECISION & ORDER

214 A.D.3d 877

In related proceedings pursuant to Family Court Act article 6, the mother appeals from two orders of the Family Court, Suffolk County (George F. Harkin, J.), both dated July 6, 2022. The first order, insofar as appealed from, after a hearing, in effect, granted the father's petition to modify a so-ordered stipulation of settlement dated June 5, 2014, so as to award the father sole legal and physical custody of the parties’ child. The

214 A.D.3d 878

second order, upon the first order, inter alia, set forth a holiday schedule for parental access.

ORDERED that the first order is affirmed insofar as appealed from, without costs or disbursements; and it is further,

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

The parties were never married and have one child together, who was born in February 2014. On June 5, 2014, the parties entered into a so-ordered stipulation of settlement, agreeing that they would share joint custody of the child, the mother would be the child's residential custodian, and the father would have certain parental access. The father filed a petition for sole legal and physical custody on April 21, 2015, and the mother filed her own petition for that relief on April 20, 2016. A fact-finding hearing was conducted between April 17, 2017, and November 13, 2019. Thereafter, the Family Court, in effect, granted the father's petition and awarded him sole legal and residential custody of the child.

In order to modify an existing court-ordered custody arrangement, "there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interest[s] of the child" ( Pettei v. Pettei, 207 A.D.3d 670, 671, 171 N.Y.S.3d 582 [internal quotation marks omitted]; see Matter of McDowell v. Marshall, 210 A.D.3d 781, 782, 178 N.Y.S.3d 173 ; Matter of Murray v. Daves, 195 A.D.3d 1028, 1029, 146 N.Y.S.3d 805 ). "The paramount concern when making such a determination is the best interests of the child under the totality of the...