Opinion
2019-10915 2019-10917 2019-10918 2019-10919 2019-10920 2019-12832 2019-14493 Docket Nos. V-2356-10/18C, V-2356-10/18D, V-2356-10/18E, V-2356-10/18F, V-2356-10/19G
12-23-2020
In the Matter of Daniel TURKASHWAND, respondent, v. Cynthia J. BROCK, appellant.
Amy L. Colvin, Huntington, NY, for appellant. Karyn A. Villar, PLLC, Hauppauge, NY, for respondent. Penny S. Slomovitz–Glaser, Holtsville, NY, attorney for the child.
Amy L. Colvin, Huntington, NY, for appellant.
Karyn A. Villar, PLLC, Hauppauge, NY, for respondent.
Penny S. Slomovitz–Glaser, Holtsville, NY, attorney for the child.
WILLIAM F. MASTRO, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, PAUL WOOTEN, JJ.
DECISION & ORDER
In related proceedings pursuant to Family Court Act article 6, the mother appeals from six orders of the Family Court, Nassau County (Eileen C. Daly–Sapraicone, J.), all dated August 9, 2019, and a corrected decision of the same court dated November 22, 2019. The first order, upon a decision of the same court dated August 9, 2019, as corrected November 22, 2019, made after a hearing, granted the father's petition to modify a prior order of the same court (Ellen R. Greenberg, J.) dated August 31, 2016, so as to award him sole legal and residential custody of the parties' child and specified parental access to the mother. The second, third, fourth, fifth, and sixth orders dated August 9, 2019, upon the decision dated August 9, 2019, as corrected November 22, 2019, inter alia, granted certain relief with respect to the father's related petitions alleging violations of various orders of custody and parental access.
ORDERED that the appeal from the corrected decision dated November 22, 2019, is dismissed, without costs or disbursements, as no appeal lies from a decision (see Schicchi v. J.A. Green Constr. Corp, 100 A.D.2d 509, 472 N.Y.S.2d 718 ); and it is further,
ORDERED that the orders dated August 9, 2019, are affirmed, without costs or disbursements.
In an order dated August 31, 2016 (hereinafter the order of custody), the parties, who were never married, were awarded joint legal custody of their child, who was born in September 2009, with the father having residential custody of the child, and the mother having liberal parental access with the child. In September 2018, the father commenced proceedings, seeking, inter alia, to modify the order of custody so as to award him sole legal and residential custody of the child. The father alleged, among other things, that the mother routinely violated the parental access provisions of the order of custody by failing to return the child to the father as required therein, engaged in conduct consistent with alienating the child from the father, and filed false complaints against the father with Child Protective Services and the authorities. After a hearing on the father's petitions, the Family Court, inter alia, modified the order of custody so as to award the father sole legal and residential custody of the child and provide a particular parental access schedule for the mother. The mother appeals.
An order of custody or parental access may be modified only upon a showing that there has been a subsequent change in circumstances such that modification is required to protect the best interests of the child (see Matter of Georgiou–Ely v. Ely, 181 A.D.3d 885, 122 N.Y.S.3d 333 ; Matter of Hawkins v. Strong, 154 A.D.3d 753, 61 N.Y.S.3d 687 ; Matter of Maxwell v. Watt, 152 A.D.3d 693, 59 N.Y.S.3d 81 ). The best interests of the child are determined by a review of the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 174, 451 N.Y.S.2d 658, 436 N.E.2d 1260 ; Matter of Georgiou–Ely v. Ely, 181 A.D.3d at 885, 122 N.Y.S.3d 333 ; Matter of Cooper v. Nicholson, 167 A.D.3d 602, 604, 89 N.Y.S.3d 243 ). While this Court's authority in reviewing a child custody determination is as broad as that of the hearing court, the hearing court's determination should not be disturbed unless it lacks a sound and substantial basis in the record, as such determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties (see Matter of Pitkanen v. Huscher, 167 A.D.3d 901, 901, 90 N.Y.S.3d 249 ; Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208 ).
Here, the Family Court's determination that there had been a change in circumstances warranting that the father be awarded sole legal and residential custody of the child and that the mother's parental access be modified has a sound and substantial basis in the record (see Matter of Frey v. Ketcham, 57 A.D.3d 543, 869 N.Y.S.2d 160 ). The record reflects, among other things, that the mother violated the parental access provisions of the order of custody for extended periods of time, falsely accused the father and his fiance´e of abusing the child, returned the child to the father in an unkempt state, and engaged in conduct consistent with alienating the child from the father (see Matter of Grabowski v. Smith, 182 A.D.3d 1002, 123 N.Y.S.3d 313 ; Matter of Krier v. Krier, 178 A.D.3d 1372, 116 N.Y.S.3d 808 ). The contention that the court should have conducted a forensic evaluation before rendering its determination is not properly before this Court, since there was no request for a court-ordered forensic evaluation (see Matter of Quinones v. Quinones, 139 A.D.3d 1072, 1074, 32 N.Y.S.3d 607 ; Matter of Bailey v. Carr, 125 A.D.3d 853, 854, 4 N.Y.S.3d 121 ). In any event, such an evaluation was not necessary to decide the issues (see Matter of Jones v. Nohar, 108 A.D.3d 631, 968 N.Y.S.2d 391 ; Matter of Solovay v. Solovay, 94 A.D.3d 898, 941 N.Y.S.2d 712 ).
The mother's remaining contentions are without merit.
Accordingly, we agree with the Family Court's determination, inter alia, to grant the father's petition to modify the order of custody.
MASTRO, J.P., BARROS, CONNOLLY and WOOTEN, JJ., concur.