| Matter of Awan v Awan |
| 2009 NY Slip Op 04420 [63 AD3d 733] |
| June 2, 2009 |
| Appellate Division, Second Department |
| In the Matter of Paras Awan, Respondent, v Aamir Awan,Appellant. |
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McLaughlin & Stern, LLP, New York, N.Y. (Peter Alkalay and Eric Wrubel ofcounsel), for appellant.
Adam E. Small, Merrick, N.Y., for respondent.
Robert C. Mitchell, Riverhead, N.Y. (Diane B. Groom of counsel), attorney for thechild.
In a proceeding pursuant to Family Court Act article 6, the father appeals from an order ofthe Family Court, Suffolk County (Tarantino, Jr., J.), dated November 7, 2008, which, after ahearing, inter alia, granted the mother's petition to enforce a provision of a custody and visitationorder of the same court dated March 14, 2008, and, in effect, denied his motion to modify certainprovisions of the order dated March 14, 2008.
Ordered that the order is reversed, on the law, without costs or disbursements, and the matteris remitted to the Family Court, Suffolk County, for a new hearing consistent herewith, andthereafter, a new determination of the petition and motion.
In adjudicating custody and visitation rights, the most important factor to be considered isthe best interests of the child (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Assini v Assini, 11 AD3d 417[2004]). In order to be granted modification of a custody order or arrangement to which theparties voluntarily agreed, the movant must show that there has been a change in circumstancesand that modification is in the best interests of the child (see Matter of Penn v Penn, 41 AD3d 724 [2007]; Matter of [*2]Battista v Fasano, 41 AD3d 712 [2007]). Where theparents have entered into a custody and visitation agreement, " '[p]riority, not as an absolute butas a weighty factor, should, in the absence of extraordinary circumstances, be accorded' to thatagreement" (Eschbach v Eschbach, 56 NY2d at 171, quoting Matter of Nehra vUhlar, 43 NY2d 242, 251 [1977]). However, the paramount concern is the best interests ofthe child; thus, the "existence of a prior [custody or visitation] agreement is not determinative ofwhat is presently in the child's best interest" (Matter of Grigoli v Grigoli, 29 AD3d 792, 793 [2006]).Determinations as to custody and visitation are ordinarily a matter for the hearing court, and itsdetermination will not be set aside unless lacking a sound and substantial basis in the record(see Matter of Grigoli v Grigoli, 29 AD3d at 793; Mauter v Mauter, 309 AD2d737 [2003]).
Here, the father contended that based on evidence of the child's serious medical condition,the mother should be precluded from taking the child on a trip abroad, as permitted by the priorcustody and visitation order dated March 14, 2008, and that the prior order should be modified todisallow such travel. At the hearing, the child's pediatrician testified that the child was medicallyfit for travel. He also testified that the child's seizure disorder was "well controlled" withmedication, and that the mother would carry emergency medication for travel. However, thepediatrician was unaware of a possible seizure episode after he wrote a letter approving thetravel. The pediatrician also acknowledged that a seizure condition might pose an emergencysituation, and that it would be important for the child to have access to emergency medicalservices.
In light of the evidence of a possible change in the child's medical condition that was notfully explored at the hearing, the hearing evidence did not demonstrate that the proposed travelwas in the best interests of the child. In addition, the Family Court's order appealed from directedthe mother to remain in a location within 75 miles of emergency services, and it was not shownthat any such travel would be in the child's best interest under those circumstances, particularlyin light of the medical testimony indicating that the child required access to emergency medicalservices. Accordingly, the matter is remitted to the Family Court, Suffolk County, for a newhearing as to whether the proposed travel is in the best interest of the child in light of the child'smedical condition and whether there is access to emergency medical care in the specificproposed destinations and, thereafter, a new determination of the petition and motion (see Matter of Grigoli v Grigoli, 29AD3d 792 [2006]; see also Matterof Ganzenmuller v Rivera, 40 AD3d 756, 757 [2007]; cf. Matter of Puran v Murray, 37AD3d 472 [2007]; Matter of Ahmad v Naviwala, 306 AD2d 588 [2003]). Rivera,J.P., Eng, Chambers and Hall, JJ., concur.