Opinion
866 Dkt. Nos. V-12449-50-17/19A, V-12449-50-17/21B Case No. 2022–05390
10-24-2023
In the Matter PEDRO C., Petitioner–Respondent, v. MICHELLE R., Respondent–Appellant.
Larry S. Bachner, New York, for appellant. Karen D. Steinberg, New York, for respondent. Dawne Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Larry S. Bachner, New York, for appellant.
Karen D. Steinberg, New York, for respondent.
Dawne Mitchell, The Legal Aid Society, New York (Diane Pazar of counsel), attorney for the children.
Manzanet–Daniels, J.P., Rodriguez, Pitt–Burke, Higgitt, Rosado, JJ.
Order, Family Court, Bronx County (Ashley B. Black, J.), entered on or about November 10, 2022, which, after a hearing, granted petitioner father's application to modify a prior custody order by granting him sole legal and physical custody of the subject children with supervised visitation to respondent mother, unanimously affirmed, without costs.
Family Court's decision to modify custody based on a change in circumstances and the best interests of the children has a sound and substantial basis in the record (see Matter of Ze'Nya G. [Nina W.], 126 A.D.3d 566, 566, 3 N.Y.S.3d 577 [1st Dept. 2015] ). Contrary to the mother's contention, the neglect finding against her constituted a change in circumstances warranting a modification of the prior custody order, and the award of custody to the father is supported by evidence that he has provided a stable and happy home, where the children are thriving ( id. ). In addition, considering the parties' acrimonious relationship and failure to communicate or share basic information about the children, the court's grant of sole legal custody to the father was appropriate (see Matter of Tylaeya C. v. Karl S., 187 A.D.3d 402, 403, 132 N.Y.S.3d 14 [1st Dept. 2020] ).
Family Court's determination as to the mother's supervised visitation has a sound and substantial basis in the record. Furthermore, the Family Court conducted an in camera interview of both children who at the time were approximately 11 and 15 years old, and revealed their preferences for custody and visitation (see Matter of George A. v. Josephine D., 165 A.D.3d 425, 425–426, 85 N.Y.S.3d 29 [1st Dept. 2018] ).
The mother's contention that Family Court erred in making the custody determination without forensic evaluations is unpreserved and, in any event, unavailing (see Matter James Joseph M. v. Rosana R., 32 A.D.3d 725, 727, 821 N.Y.S.2d 168 [1st Dept. 2006], lv denied 7 N.Y.3d 717, 827 N.Y.S.2d 688, 860 N.E.2d 990 [2006] ). "The decision whether to obtain forensic evaluations to assist in reaching a custody determination rests within the sound discretion of the trial court" ( id. at 727, 821 N.Y.S.2d 168 [internal citations omitted]), and the mother does not demonstrate that forensic evaluations were warranted here. The court conducted in camera interviews of the children and possessed sufficient information to make its determination. Nor was the mother deprived the effective assistance of counsel. Her speculation that favorable evidence might have been offered on her behalf is not sufficient to demonstrate prejudice constituting ineffective assistance of counsel (see Matter of Anthony G. v. Stephanie H., 189 A.D.3d 615, 616, 134 N.Y.S.3d 712 [1st Dept. 2020], lv denied 36 N.Y.3d 911, 2021 WL 1685981 [2021] ).
We have considered the mother's remaining arguments and find them unavailing.