Opinion
9087
04-25-2019
IN RE RICHARD I., Jr., Petitioner–Respondent, v. DARCEL I., Respondent–Appellant.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant. Anne Reiniger, New York, for respondent. Steven P. Forbes, Jamaica, attorney for the child.
Richard L. Herzfeld, P.C., New York (Richard L. Herzfeld of counsel), for appellant.
Anne Reiniger, New York, for respondent.
Steven P. Forbes, Jamaica, attorney for the child.
Sweeny, J.P., Manzanet–Daniels, Tom, Kapnick, Moulton, JJ.
Order, Family Court, New York County (Marva A. Burnett, Referee), entered on or about April 5, 2018, which, after a hearing, granted petitioner father's application for sole physical and legal custody of the subject child, unanimously affirmed, without costs.
The determination that the father established that there has been a sufficient change of circumstances such that a modification of the custody arrangement was in the child's best interests has a sound and substantial basis in the record (see McGinnis v. McGinnis, 159 A.D.3d 475, 71 N.Y.S.3d 488 [1st Dept. 2018] ; cf. Matter of David H. v. Khalima H. , 111 A.D.3d 544, 976 N.Y.S.2d 32 [1st Dept. 2013], lv dismissed 22 N.Y.3d 1149, 984 N.Y.S.2d 289, 7 N.E.3d 502 [2014] ). While respondent mother had been the child's primary caretaker, the child struggled in school, was often late to school and had poor hygiene. The child was also suspended twice from school for violent behavior, and the mother failed to enroll him in therapy despite recommendations by the school. On the other hand, the father worked with the school to help the child improve, enrolled the child in individual therapy and participated in sessions with him, and consistently provided for the child's care and well-being (see Matter of Louise E.S. v. W. Stephen S. , 64 N.Y.2d 946, 947, 488 N.Y.S.2d 637, 477 N.E.2d 1091 [1985] ).
The forensic evaluator found that both parents had a strong relationship with the child, but that the father was more willing than the mother to facilitate the noncustodial parent's relationship with the child (see Matter of Damien P.C. v. Jennifer H.S. , 57 A.D.3d 295, 869 N.Y.S.2d 59 [1st Dept. 2008], lv denied 12 N.Y.3d 710, 2009 WL 1260207 [2009] ). Furthermore, the court properly struck the mother's testimony after she failed to appear to complete her testimony and drew a negative inference on that basis (see Matter of Rosemary V. [Jorge V.], 103 A.D.3d 484, 960 N.Y.S.2d 84 [1st Dept. 2013] ).