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In re Khan-Soleil

Supreme Court of New York, Second Department

November 13, 2013

In the Matter of Bibi Khan-Soleil, appellant,
v.
Armani Rashad, respondent. (Proceeding No. 1) In the Matter of Armani Rashad, respondent,
v.
Bibi Khan-Soleil, appellant. (Proceeding No. 2) Docket Nos. V-19490-06, V-29650-10

Ernestine Mings, Brooklyn, N.Y., for appellant.

Gail R. Rich, Brooklyn, N.Y., for respondent.

Karen P. Simmons, Brooklyn, N.Y. (Janet Neustaetter and Barbara Dildine of counsel), attorney for the child.

PETER B. SKELOS, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, SYLVIA O. HINDS-RADIX, JJ.

DECISION & ORDER

In related child custody proceedings pursuant to Family Court Act article 6, the mother appeals from (1) an order of the Family Court, Kings County (Hepner, J.), dated November 16, 2012, which, after a hearing, granted the father's petition for sole custody of the parties' child and denied her cross petition for sole custody of the parties' child, and (2) an order of the same court dated November 19, 2012, which, inter alia, directed her to stay away from the subject child until September 1, 2013, except for participation in supervised visitation.

ORDERED that the appeal from the order dated November 19, 2012, is dismissed as academic, as that order has expired by its own terms (see Matter of Angelina L. C. [ Michael C. ], _____ A.D.3d _____, 2013 NY Slip Op 06565 [2d Dept 2013]; and it is further,

ORDERED that the order dated November 16, 2012, is affirmed; and it is further,

ORDERED that one bill of costs is awarded to the father.

"In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child" (Matter of Jules v Corriette, 76 A.D.3d 1016, 1017; see Eschbach v Eschbach, 56 N.Y.2d 167, 171; Matter of McKoy v Vatter, 106 A.D.3d 1090; Matter of Roldan v Nieves, 76 A.D.3d 634; Pierre-Paul v Boursiquot, 74 A.D.3d 935, 936; Mohen v Mohen, 53 A.D.3d 471, 472-473; Matter of Fallarino v Ayala, 41 A.D.3d 714, 714-715). "As custody determinations turn in large part on assessments of the credibility, character, temperament, and sincerity of the parties, the Family Court's determination should not be disturbed unless it lacks a sound and substantial basis in the record" (Matter of Tori v Tori, 103 A.D.3d 654, 655; see Eschbach v Eschbach, 56 N.Y.2d at 173; Matter of McKoy v Vatter, 106 A.D.3d at 1090; Matter of Cooper v Robertson, 97 A.D.3d 743, 744; Matter of Clarke v Boertlein, 82 A.D.3d 976, 977; Matter of Jules v Corriette, 76 A.D.3d at 1017; Pierre-Paul v Boursiquot, 74 A.D.3d at 936; Mohen v Mohen, 53 A.D.3d at 473).

"[O]ne of the primary responsibilities of a custodial parent is to assure meaningful contact between the children and the noncustodial parent, and the willingness of a parent to assure such meaningful contact between the children and the other parent is a factor to be considered in making a custody determination" (Matter of Vasquez v Ortiz, 77 A.D.3d 962, 962; see Matter of Honeywell v Honeywell, 39 A.D.3d 857, 858; Cuccurullo v Cuccurullo, 21 A.D.3d 983, 984). In contrast, "[w]illful interference with a noncustodial parent's right to visitation is so inconsistent with the best interests of the children as to, per se, raise a strong probability that the offending party is unfit to act as a custodial parent" (Matter of Ross v Ross, 68 A.D.3d 878, 878; see Matter of Lawlor v Eder, 106 A.D.3d 739, 740; Matter of Tori v Tori, 103 A.D.3d at 655; Matter of Jones v Pagan, 96 A.D.3d 1058; Matter of Gurewich v Gurewich, 58 A.D.3d 628, 629; Matter of Weinberg v Weinberg, 52 A.D.3d 616, 617; Matter of Nikolic v Ingrassia, 47 A.D.3d 819, 820; Young v Young, 212 A.D.2d 114, 122; see also Matter of DeViteri v Saldana, 95 A.D.3d 1221, 1222; Matter of Jules v Corriette, 76 A.D.3d at 1017; Pierre-Paul v Boursiquot, 74 A.D.3d at 936; Bains v Bains, 308 A.D.2d 557, 558).

Here, contrary to the mother's contention, the Family Court properly determined that the best interests of the parties' child would be served by awarding the father sole custody. The determination was supported by the record, including the testimony of the parties, which established, among other things, that the mother allowed the child to view her ex-husband, rather than the father, as the child's father and to call him "daddy" or "dad"; that the mother and her ex-husband deliberately interfered with the father's relationship with the child by putting the ex-husband's name on the child's amended birth certificate, despite their knowledge of genetic testing establishing that the father was the child's biological parent and despite the father having obtained an order of filiation; that, despite his knowledge of the genetic testing, the ex-husband, with the mother's acquiescence, attempted to adopt the child; that the mother acquiesced in her ex-husband's attempt to have their judgment of divorce vacated and then reinstated at a date after the child's birth so as to create a legal presumption that he was the child's father; that the mother and ex-husband opposed the father's petitions for custody or visitation and his petition to establish paternity; that the mother persistently denigrated the father in the child's presence; and that the mother made repeated uncorroborated and unfounded allegations of domestic violence and abuse of the child against the father, which interrupted his visitation with the child for extended periods. All of these actions were to the detriment of the child's best interests. Although the mother attempted to excuse her behavior based upon her allegations of domestic violence by the father and abuse of the child, the Family Court concluded that her allegations were not supported by credible evidence, and thus it properly discounted that explanation (see Matter of Jones v Pagan, 96 A.D.3d at 1058; Pierre-Paul v Boursiquot, 74 A.D.3d at 936). Moreover, the mother's testimony established her continued unwillingness to place the child's need for a relationship with the father above her own interest in avoiding the father and thwarting his attempts to form a relationship with the child (see Matter of Dobbins v Vartabedian, 304 A.D.2d 665, 666; Cucinello v Cucinello, 234 A.D.2d 365, 366). These acts constitute conduct so inconsistent with the best interests of the child as to per se raise a strong probability that the mother is unfit to act as a custodial parent (see Matter of Purse v Crocker, 95 A.D.3d 1216, 1217; Matter of Reyes v Polanco, 83 A.D.3d 849, 850-851; Matter of Honeywell v Honeywell, 39 A.D.3d at 858; Matter of Perez v Sepulveda, 21 A.D.3d 558, 559; Cucinello v Cucinello, 234 A.D.2d at 366). Accordingly, the Family Court's determination awarding the father sole custody of the child was supported by the record.

The mother's remaining contentions regarding the award of custody are either unpreserved for appellate review or without merit.

SKELOS, J.P., COHEN, MILLER and HINDS-RADIX, JJ., concur.


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