Opinion
802 CAF 19-00395
10-02-2020
In the Matter of Victor MORALES, Petitioner-Respondent, v. Yaimel VAILLANT, Respondent-Appellant. (Appeal No. 1.)
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT-APPELLANT. EMILY A. VELLA, SPRINGVILLE, ATTORNEY FOR THE CHILD.
DEBORAH J. SCINTA, ORCHARD PARK, FOR RESPONDENT-APPELLANT.
EMILY A. VELLA, SPRINGVILLE, ATTORNEY FOR THE CHILD.
PRESENT: CENTRA, J.P., PERADOTTO, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In these proceedings pursuant to Family Court Act articles 6 and 8, respondent mother appeals in appeal No. 1 from an order that, inter alia, granted the petition of petitioner father seeking modification of the existing custody and visitation order by awarding him sole legal and physical custody of the parties' child, with visitation to the mother. In appeal No. 2, the mother appeals from an order of protection issued upon a finding that she committed the family offense of reckless endangerment in the second degree against the child.
Contrary to the mother's contention in appeal No. 1, Family Court properly determined that the father met his burden of establishing a change in circumstances sufficient to warrant an inquiry into whether a modification of the custody and visitation arrangement is in the best interests of the child (see Matter of Greene v. Kranock , 160 A.D.3d 1476, 1476, 74 N.Y.S.3d 826 [4th Dept. 2018] ). Here, "according due deference to the court's assessment of witness credibility" ( Matter of Voorhees v. Talerico , 128 A.D.3d 1466, 1466, 8 N.Y.S.3d 796 [4th Dept. 2015], lv denied 25 N.Y.3d 915, 16 N.Y.S.3d 519, 37 N.E.3d 1162 [2015] ), we conclude that the evidence at the hearing established the requisite change in circumstances based on, inter alia, the mother's inability to handle the then 31/2-year-old child's purported misbehavior and her resort to inappropriate physical discipline to punish the child (see Matter of DeJesus v. Gonzalez , 136 A.D.3d 1358, 1360, 24 N.Y.S.3d 825 [4th Dept. 2016], lv denied 27 N.Y.3d 906, 36 N.Y.S.3d 620, 56 N.E.3d 900 [2016] ; Matter of Samuel v. Samuel , 64 A.D.3d 920, 921, 881 N.Y.S.2d 729 [3d Dept. 2009] ; Matter of Hagans v. Harden , 12 A.D.3d 972, 973, 785 N.Y.S.2d 173 [3d Dept. 2004], lv denied 4 N.Y.3d 705, 794 N.Y.S.2d 300, 827 N.E.2d 284 [2005] ) and the parties' "heightened inability ‘to communicate in a manner conducive to sharing joint custody’ " ( Murray v. Murray , 179 A.D.3d 1546, 1546, 118 N.Y.S.3d 879 [4th Dept. 2020] ; see Matter of Ladd v. Krupp , 136 A.D.3d 1391, 1392, 24 N.Y.S.3d 834 [4th Dept. 2016] ; Matter of York v. Zullich , 89 A.D.3d 1447, 1448, 932 N.Y.S.2d 637 [4th Dept. 2011] ).
Contrary to the mother's further contention in appeal No. 1, we conclude that the court properly determined that modifying the existing custody and visitation order was in the best interests of the child. The record establishes that the court's determination resulted from a "careful weighing of [the] appropriate factors ... and ... has a sound and substantial basis in the record" ( Matter of Biernbaum v. Burdick , 162 A.D.3d 1664, 1665, 80 N.Y.S.3d 761 [4th Dept. 2018] [internal quotation marks omitted]; see DeJesus , 136 A.D.3d at 1360, 24 N.Y.S.3d 825 ; see generally Fox v. Fox , 177 A.D.2d 209, 210, 582 N.Y.S.2d 863 [4th Dept. 1992] ).
We agree with the mother in appeal No. 2, however, that the father failed to establish by a fair preponderance of the evidence that the mother committed the family offense of reckless endangerment in the second degree ( Penal Law § 120.20 ; see Family Ct Act §§ 812 [1] ; 832) inasmuch as the mother's acts did not create a substantial risk of serious physical injury (see Penal Law § 10.00 [10] ; Matter of Hefley v. Luck , 179 A.D.3d 797, 798, 113 N.Y.S.3d 894 [2d Dept. 2020] ). We therefore reverse the order in appeal No. 2 and dismiss the petition.