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In re Michael B.

Supreme Court of New York, First Department

January 23, 2014

In re Michael B., Petitioner-Respondent,
v.
Dolores C., Respondent-Appellant.

Joseph V. Moliterno, Scarsdale, for appellant.

Fersch Petitti LLC, New York (Danielle R. Petitti of counsel), for respondent.

Karen P. Simmons, The Children's Law Center, Brooklyn (Melanie T. West of counsel), attorney for the child.

Mazzarelli, J.P., Friedman, Renwick, Moskowitz, Richter, JJ.

Order, Family Court, Bronx County (Annette Louise Guarino, Referee), entered on or about August 24, 2012, which, after a hearing, granted respondent father's petition for modification of custody and awarded him sole legal and physical custody of the child with visitation to appellant mother, unanimously modified, on the law, to the extent of remanding the matter for further proceedings to determine a visitation schedule, and otherwise affirmed, without costs.

The Referee's determination that it is in the child's best interest to modify the prior joint custody order and award respondent sole legal and physical custody has a sound and substantial basis in the record (see Lubit v Lubit, 65 A.D.3d 954, 955 [1st Dept 2009], lv denied, 13 N.Y.3d 716, cert denied, 560 U.S. 940 [2010]. The parties' are unable to reach a consensus on issues related to the child (see Trapp v Trapp, 136 A.D.2d 178, 181-182 [1st Dept 1988]), and appellant ignored the March 11, 2009 custody order's directive that she keep respondent informed of "all major issues regarding [the child's] health, education and welfare, " making joint custody inappropriate (see Matter of Blerim M. v Racquel M., 94 A.D.3d 562, 563 [1st Dept 2012]; Bliss v Ach, 56 N.Y.2d 995, 998-999 [1982]). Among other things, appellant removed the child from the school in which he was enrolled without consulting respondent.

The record demonstrates that when the child was in appellant's custody, he did not regularly attend school, was not picked up from school on time, and did not receive proper medical care. In addition, appellant refused to cooperate with respondent on matters concerning their son (see Matter of Hugh L. v Fhara L., 44 A.D.3d 192 [1st Dept 2007], lv denied 9 N.Y.3d 814 [2007]). Respondent, however, has expressed his intention to allow appellant to have meaningful interaction and regular visitation with the child, has provided a stable and supportive home for the child, and has met the child's academic and medical needs. The fact that the child expressed a desire to live with appellant is not determinative (see Matter of Hildebrandt v St. Elmo Lee, 110 A.D.3d 491, 492 [1st Dept 2013]).

The referee's directive that appellant and respondent arrange their own visitation schedule is untenable given their inability to communicate with each other. The Family Court must establish a visitation schedule for the noncustodial parent (see Matter of William BB. v Susan DD., 31 A.D.3d 907, 908 [3d Dept 2006]).


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