| Matter of Flores v Mark |
| 2013 NY Slip Op 04335 [107 AD3d 796] |
| June 12, 2013 |
| Appellate Division, Second Department |
| In the Matter of Ervin Flores,Respondent, v Niomee Sonja Mark, Appellant. (Proceeding No. 1.) In the Matterof Niomee Sonja Mark, Appellant, v Ervin Flores, Respondent. (Proceeding No.2.) |
—[*1]
Ervin Flores, Brooklyn, N.Y., respondent pro se.
In related child custody and family offense proceedings, the mother appeals, aslimited by her brief, from so much of an order of the Supreme Court, Kings County (IDVPart) (Henry, J.), dated November 14, 2011, as, after a hearing, in effect, granted thefather's petition to modify a prior order of the same court dated December 2, 2009,awarding the parties joint legal custody of the subject child with primary physicalcustody to the mother, so as to award the father sole custody of the subject child, and, ineffect, granted the father's family offense petition.
Ordered that the order dated November 14, 2011, is affirmed insofar as appealedfrom, with costs.
" 'A modification of an existing custody arrangement should be allowed only upon ashowing of a sufficient change in circumstances demonstrating a real need for a changeof custody in order to insure the child's best interests' " (Matter of Dorsa v Dorsa, 90AD3d 1046, 1046 [2011], quoting Matter of Nava v Kinsler, 85 AD3d 1186, 1186 [2011])."Since weighing the factors relevant to any custody determination requires an evaluationof the credibility and sincerity of the parties involved, the hearing court's findings areaccorded deference, and will not be disturbed unless they lack a sound and substantialbasis in the record" (Matter ofJackson v Coleman, 94 AD3d 762, 763 [2012]; see Matter of Solovay vSolovay, 94 AD3d 898, 899 [2012]; Matter of Ross v Ross, 86 AD3d 615, 616 [2011]).
Here, the Supreme Court's determination that there had been a change incircumstances since the issuance of the prior custody order, and that it was in the child'sbest interests to modify that order so as to, inter alia, award the father sole custody of thesubject child, has a sound and substantial basis in the record. The evidence presented atthe hearing demonstrates [*2]that the relationshipbetween the parties has become so antagonistic that they are unable to communicate orcooperate on matters concerning the subject child. Thus, joint custody was no longer anappropriate arrangement in this case (see Bliss v Ach, 56 NY2d 995, 998 [1982];Braiman v Braiman, 44 NY2d 584, 589-590 [1978]; Matter of Solovay vSolovay, 94 AD3d at 899). Further, the hearing testimony supports the SupremeCourt's finding that the mother willfully interfered with the father's right to visitation (see Matter of Ross v Ross, 68AD3d 878, 878 [2009]; Matter of Weinberg v Weinberg, 52 AD3d 616, 617[2008]; Matter of King v King, 225 AD2d 697, 698 [1996]). Additionally, theindependent forensic evaluator opined that the mother had anger management issues andthat the father is more likely to foster a relationship between the subject child and thenoncustodial parent (see Matterof Caravella v Toale, 78 AD3d 828, 828 [2010]; Matter of King v King,225 AD2d at 698). Accordingly, we decline to disturb the Supreme Court's award of solecustody of the child to the father with visitation to the mother.
Further, the mother's contention that the Supreme Court erred in failing to take intoaccount certain recommendations made by the forensic evaluator is without merit. Inreaching its determination, the Supreme Court was "not required to accept therecommendation of the court-appointed forensic psychologist (see Bruno vBruno, 47 AD3d 606 [2008]; Matter of Kelly v Hickman, 44 AD3d 941 [2007];Matter of Griffin v Scott, 303 AD2d 504 [2003]), as such recommendations aremerely additional factors to be considered since 'they are not determinative and do notusurp the judgment of the trial judge' (Matter of Kozlowski v Mangialino, 36 AD3d 916, 917[2007])" (Bourne vBristow, 66 AD3d 621, 622 [2009]). Here, the Supreme Court did not arbitrarilydisregard the recommendations of the forensic evaluator. Rather, the court fullyexplained its reasons for rejecting some of his recommendations. Further, the recordamply supports the court's rationale in this regard inasmuch as the record demonstratedthat the parties were unable to communicate or to cooperate with one another concerningthe subject child.
Moreover, while the mother argues that the Supreme Court erred in failing tointerview the subject child in order to find out his preference, the subject child was onlythree years old at the time the order appealed from was issued. Thus, the child was notmature enough to " 'weigh intelligently the factors necessary to make a wise choice as to[his] custody' " (Matter of Robert T.F. v Rosemary F., 148 AD2d 449, 452[1989], quoting Feltman v Feltman, 99 AD2d 540, 541 [1984]).
While the mother correctly contends that the Supreme Court improperly admittedinto evidence certain one-sided recordings submitted by the father, since there was asound and substantial basis in the record for the Supreme Court's determination withoutconsideration of these recordings, the error was harmless (see Matter of Shamika K.L.N.[Melvin S.L.], 101 AD3d 729, 731 [2012]; Matter of Lane v Lane, 68 AD3d 995, 998 [2009];Matter of John F., 221 AD2d 858, 861-862 [1995]).
Finally, the record supports the Supreme Court's determination that, based on a fairpreponderance of the credible evidence, the mother committed two family offensesconstituting harassment in the second degree (see Penal Law § 240.26 [1]).Rivera, J.P., Hall, Cohen and Miller, JJ., concur.