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Leroy D. West, Sr., Petitioner-Appellant v. Racquel Vanderhorst

New York Supreme and/or Appellate Courts Appellate Division, First Department


February 28, 2012

LEROY D. WEST, SR., PETITIONER-APPELLANT,
v.
RACQUEL VANDERHORST, RESPONDENT-RESPONDENT.

West v Vanderhorst

Decided on February 28, 2012

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Mazzarelli, J.P., Andrias, Catterson, Abdus-Salaam, Manzanet-Daniels, JJ.

Order, Family Court, Bronx County (Elizabeth Barnett, Referee), entered on or about April 22, 2010, which, after a trial, among other things, awarded respondent mother sole legal and physical custody of the parties' child, with visitation to petitioner father, unanimously affirmed, without costs.

The Referee's determination, that it was in the child's best interests to modify the parties' joint custody agreement and award respondent sole legal and physical custody, has a sound and substantial basis in the record (Eschbach v Eschbach, 56 NY2d 167, 171 [1982]). Indeed, the record shows that, following entry of the parties' judgment of divorce, which incorporated their stipulation providing for joint custody, there was a complete breakdown in communication between the parties and an incident of domestic violence in the child's presence, thereby rendering joint custody infeasible (see Trapp v Trapp, 136 AD2d 178, 181 [1988]). The record also shows that petitioner violated the parties' stipulation by prohibiting respondent from contacting the child when he was with petitioner, and twice refused to alert respondent to the fact that the child had been hospitalized. Accordingly, unlike respondent, petitioner's conduct and attitude indicated an unwillingness to support and encourage a relationship between the child and respondent (see Gregory L.B. v Magdelena G., 68 AD3d 478, 479 [2009]). The Referee also properly determined that relocation to respondent's home in New Jersey, which was permitted under the parties' stipulation, and modification of petitioner's visitation schedule, was in the child's best interests (see Matter of Lionel E. v Shaquana R.B., 73 AD3d 434, 434 [2010]). Contrary to petitioner's contention, the parties' stipulation does not require the child to attend a religious school.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 28, 2012

CLERK

20120228

© 1992-2012 VersusLaw Inc.



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