| Matter of Paul A. v Shaundell LL. |
| 2014 NY Slip Op 03890 [117 AD3d 1346] |
| May 29, 2014 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Paul A., Respondent, v Shaundell LL.,Appellant. (And Three Other Related Proceedings.) |
James J. Brearton, Latham, for appellant.
George Collins, Albany, for respondent.
Sandra Allen, Albany, attorney for the child.
Egan Jr., J. Appeals (1) from an order of the Family Court of Albany County(Maney, J.), entered July 11, 2012, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to find respondent in willful violation ofa prior order of the court, and (2) from an order of said court, entered October 3, 2012,which, among other things, granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are theparents of a son (born in 2005). In July 2010, Family Court issued an order which,among other things, continued in effect an August 2008 order, entered upon stipulationof the parties, whereby the mother had sole custody of the child and the father hadalternating weekend parenting time from Friday at 8:00 p.m. until Sunday at 6:00 p.m., aswell as such other parenting time as agreed to by the parties. In August 2011, the fathercommenced the first two of these proceedings, seeking, among other things, modificationof the custodial relationship and alleging the mother's violation thereof. One month later,the father commenced a third proceeding, alleging that the mother's harassment of himconstituted a family offense.
[*2] At the initialappearance on these petitions, Family Court granted the father's motion for an orderdirecting a psychological evaluation of the parties and the child. When the motherallegedly failed to execute the necessary releases or submit herself or the child forevaluation, the father commenced the last of these proceedings, seeking to hold themother in contempt. By order entered July 11, 2012, Family Court—following ahearing—found the mother to be in contempt due to, among other things, herfailure to submit to the psychological evaluation. After additional fact-finding hearings,Family Court, by order entered October 3, 2012, dismissed the family offense petition,found the mother to be in willful violation of the prior custody orders and granted thefather sole legal and physical custody of the child with supervised parenting time to themother. The mother appeals from both the July 2012 and October 2012 orders.[FN*]
We affirm. Initially, we are unpersuaded that the mother was denied the assistance ofcounsel during these proceedings. At a pretrial appearance in November 2011, assignedcounsel moved to be relieved of his assignment due to the mother's failure to cooperatewith him. As the mother also requested that counsel be dismissed, Family Court grantedcounsel's motion—informing the mother that she was entitled to representation byan attorney in all matters before the court and that it was "up to [her]" whether shewanted such representation. Thereafter, Family Court repeatedly advised themother—both prior to and during the fact-finding hearings—of her right tocounsel and asked as to how she intended to proceed. The mother's responses to FamilyCourt's repeated inquiries were evasive, argumentative and nonresponsive, and norequest for counsel was made.
While there is no question that a party in a custody proceeding is entitled torepresentation by an attorney (see Family Ct Act § 262 [a] [iii]; Matter of Dolson v Mitts, 99AD3d 1079, 1080 [2012]), there also is no dispute that the mother was advised ofher rights in this regard—on multiple occasions—and given the option ofeither proceeding with counsel or proceeding pro se. Instead of pursuing one of theseoptions, the mother elected to engage in obstructionist behavior, thereby knowingly andvoluntarily waiving her right to counsel (cf. People v Henriquez, 3 NY3d 210, 216-217 [2004]; Matter of Julie G. v Yu-Jen G.,81 AD3d 1079, 1081-1082 [2011]; Matter of Adams v Bracci, 61 AD3d 1065, 1066 [2009],lv denied 12 NY3d 712 [2009]).
Turning to the merits, we find no error in Family Court's finding that the motherwillfully violated the court's order for a psychological evaluation of the parties and thechild. "To sustain a civil contempt finding based upon the violation of a court order, itmust be established that there was a lawful court order in effect that clearly expressed anunequivocal mandate, that the person who allegedly violated the order had actualknowledge of its terms, and that his or her actions or failure to act defeated, impaired,impeded or prejudiced a right of the moving party. The violation must be established byclear and convincing evidence" (Matter of Joseph YY. v Terri YY., 75 AD3d 863, 867[2010] [internal quotation marks and citation omitted]).
[*3] Here, the mother's contempt was sufficientlyestablished through her own testimony and documentary evidence, which revealed that,although aware of the terms of the order, she failed to schedule, cooperate or completethe court-ordered evaluation of herself or produce the child for such evaluation. As such,Family Court did not abuse its discretion in finding that such conduct was willful (see Matter of Keefe v Adam,85 AD3d 1225, 1227 [2011]; Matter of Seacord v Seacord, 81 AD3d 1101, 1102-1103[2011]; Matter of Aurelia vAurelia, 56 AD3d 963, 964-965 [2008]). We reach a similar conclusion withrespect to Family Court's imposition of a suspended sentence and order directing themother to reimburse the father for fees expended in connection with psychologicalevaluations, together with the counsel fees incurred in connection with the filing of thecontempt petition.
We also are of the view that Family Court's modification of the custody arrangementis supported by a sound and substantial basis in the record. "A parent seeking to modifyan existing custody order bears the burden of demonstrating a sufficient change incircumstances since the entry of the prior order to warrant modification thereof in thechild[ ]'s best interests" (Matterof Sonley v Sonley, 115 AD3d 1071, 1072 [2014] [internal quotation marks andcitations omitted]; see Matter ofSpiewak v Ackerman, 88 AD3d 1191, 1192 [2011]). Here, the recordestablishes that, since the entry of the July 2010 order, the parties' relationship hasdeteriorated to a point where there is no meaningful communication or cooperation forthe sake of the child; indeed, they are incapable of cooperating with one another inadjusting parenting time or rescheduling drop-off or pick-up times of the child.Furthermore, the father testified that the mother is hostile and accusatory toward him infront of the child and that, as a result, the child is withdrawn and quiet at every custodyexchange. In view of this, Family Court properly concluded that the father haddemonstrated the requisite change in circumstances, thereby warranting an examinationof whether a change in custody is in the best interests of the child.
"In determining what custodial arrangement would be in the best interests of thechild, the relevant factors include maintaining stability in the child's life, the wishes ofthe child, the quality of the home environment, each parent's past performance, relativefitness and ability to guide and provide for the child's intellectual and emotionaldevelopment, and the effect the award of custody to one parent would have on the child'srelationship with the other" (Matter of Zwack v Kosier, 61 AD3d 1020, 1022 [2009],lv denied 13 NY3d 702 [2009] [internal quotation marks and citations omitted];see Matter of Darrow vDarrow, 106 AD3d 1388, 1390 [2013]). "While a determination of the child[ ]'sbest interests must be based on a totality of the circumstances, [e]vidence that thecustodial parent intentionally interfered with the noncustodial parent's relationship withthe [child] is so inconsistent with the best interests of the [child] as to, per se, raise astrong probability that [the offending party] is unfit to act as custodial parent" (Matter of Dobies v Brefka, 83AD3d 1148, 1151 [2011] [internal quotation marks and citation omitted]).
Here, the record reflects that the mother has consistently disrupted the father'sscheduled visitations with the child—either by arriving late or failing to arrive atall—and has resisted any and all efforts by the father to make up for missed visitsor to schedule additional parenting time with the child. The record further reveals that, byinsisting upon a police escort when transporting the child to the father's home,videotaping the custody exchanges and examining/photographing the child's body beforeand after visitations with the father, the mother has created a stressful and antagonisticenvironment that, in turn, has had a negative impact upon the child. In addition to theforegoing, the record establishes that the mother disparages the father in front of thechild and had lodged baseless accusations against the father, contending that he molestedand poisoned the child.
[*4] The father alsotestified regarding his concerns about the child's hygiene, stating that when the childarrives for visitations, he needs to be bathed and groomed and is dressed in ill-fittedclothing. Additionally, according to the father, the mother fails to share any of the child'sschool or medical records with him, and the school that the child currently attends forday care, and in which the mother plans on enrolling him for elementary school, is notlicensed by the Department of Education. Finally, the father testified that, if awardedcustody, he would encourage a relationship between the child and the mother, even to theextent of participating in, and paying for, counseling to improve that relationship.
Viewing the totality of the circumstances, and according deference to Family Court'scredibility determinations, there is a sound and substantial basis in the record to supportFamily Court's determination that it is in the child's best interests to transfer sole legaland physical custody of him to the father (see Matter of Keefe v Adam, 85 AD3dat 1226-1227; Matter of Dobies v Brefka, 83 AD3d at 1151-1152; Matter ofSeacord v Seacord, 81 AD3d at 1104). The mother's interference with the father'svisitation rights and inappropriate conduct at the custody exchanges are detrimental tothe child, and her hostile and egregious conduct toward the father in front of the childreflects her unwillingness to promote and encourage a relationship between the fatherand the child. Accordingly, we discern no basis upon which to disturb Family Court'saward of sole custody to the father with supervised visitation with the mother. Themother's remaining arguments have been considered and found to be without merit.
Peters, P.J., Stein and Rose, JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote *:To the extent that theattorney for the child asserts that the appeal from the July 2012 order is untimely, therecord does not contain an affidavit of service or otherwise reflect when the mother wasserved with that order. As we are unable to confirm that the mother's appeal from the July2012 order indeed is untimely, we will address the merits.