Opinion
2019–01213 Index No. 50/17
12-16-2020
In the Matter of Bouchra HREAT, respondent, v. Yaser HREAT, appellant.
Warren S. Hecht, Forest Hills, NY, for appellant. Shepard Kays, Nanuet, NY, for respondent. William E. Horwitz, Briarcliff Manor, NY, attorney for the children.
Warren S. Hecht, Forest Hills, NY, for appellant.
Shepard Kays, Nanuet, NY, for respondent.
William E. Horwitz, Briarcliff Manor, NY, attorney for the children.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Supreme Court, Rockland County (IDV Part) (Sherri L. Eisenpress, J.), dated January 10, 2019. The order, after a hearing, granted the mother's petition to modify a prior order of the Family Court, Rockland County (Rachel E. Tanguay, J.), dated April 26, 2017, entered upon the consent of the parties, so as to award the mother sole legal and physical custody of the subject children.
ORDERED that the order dated January 10, 2019, is affirmed, without costs or disbursements.
The parties have two children together, born in 2010 and 2012. In November 2016, the parents separated and the mother obtained an order of protection against the father, which permitted communications regarding the children. In an order dated April 26, 2017, upon the consent of the parties, the Family Court awarded the parties joint legal custody of the children, with physical custody and final decision-making authority to the mother. In May 2017, the mother obtained a further order of protection, this one prohibiting all communication by the father with the mother and the children, including communication concerning the children. Thereafter, the mother petitioned to modify the prior custody order, seeking sole legal and physical custody of the children. After a hearing, the Supreme Court granted the mother's petition. The father appeals.
"Findings of the [hearing court] which have a sound and substantial basis in the record are generally entitled to great deference on appeal" ( Matter of Agyapon v. Zungia, 150 A.D.3d 1226, 1227, 56 N.Y.S.3d 198 ; see Matter of Guerra v. Oakes, 160 A.D.3d 855, 856, 74 N.Y.S.3d 102 ). However, "[i]nherent in the proposition that a reviewing court will give deference to the findings made by the hearing court is that the hearing court issued either a written or oral decision setting forth its findings of fact and conclusions of law" ( Matter of Newton v. McFarlane, 174 A.D.3d 67, 79, 103 N.Y.S.3d 445, citing CPLR 4213[b] ). Here, in the absence of a decision, orally or in writing, setting forth the findings of fact and reasoning for the Supreme Court's determination, the appropriate scope of appellate review is de novo, and the record is sufficiently complete to permit such review (see Matter of Newton v. McFarlane, 174 A.D.3d at 79, 103 N.Y.S.3d 445 ; Matter of Larkin v. White, 64 A.D.3d 707, 708–709, 884 N.Y.S.2d 90 ).
"The 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 Nunez v. Lasso, 144 A.D.3d 689, 689, 39 N.Y.S.3d 813 ; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ). "In order to modify an existing court-sanctioned custody [arrangement], there must be a showing of a subsequent change in circumstances so that modification is required to protect the best interests of the child" ( Matter of Newton v. McFarlane, 174 A.D.3d at 76, 103 N.Y.S.3d 445 [internal quotation marks omitted] ).
Furthermore, "joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion" ( Braiman v. Braiman, 44 N.Y.2d 584, 589–590, 407 N.Y.S.2d 449, 378 N.E.2d 1019 ). "However, joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child" ( Matter of Gorniok v. Zeledon–Mussio, 82 A.D.3d 767, 768, 918 N.Y.S.2d 516 [internal quotation marks omitted] ).
Here, contrary to the father's contention, the record soundly and substantially supports both the existence of changed circumstances, as well as the Supreme Court's determination that a modification of custody was in the best interests of the children (see Matter of Ascolillo v. Ascolillo, 43 A.D.3d 1160, 1160, 844 N.Y.S.2d 339 ). Accordingly, the order appealed from should be affirmed.
DILLON, J.P., CHAMBERS, MILLER and BRATHWAITE NELSON, JJ., concur.