In the Matter of E.D. (Anonymous), respondent,
D.T. (Anonymous), appellant. (Action No.1) In the Matter of D.T. (Anonymous), appellant,
E.D. (Anonymous), respondent. (Action No. 2) Docket Nos. V-1168/12, V-900/14
Scarlato & Associates, Brooklyn, NY (Henry James Joseph
and Cody I. Paul of counsel), for appellant.
Michael B. Palillo, P.C. New York, NY, for respondent.
P. Simmons, Brooklyn, NY (Janet Neustaetter and Barbara H.
Dildine of counsel), attorney for the child.
LEONARD B. AUSTIN, J.P., SYLVIA O. HINDS-RADIX, COLLEEN D.
DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
by the mother from an order of the Supreme Court, Kings
County (IDV Part) (Esther M. Morgenstern, J.), dated February
17, 2016. The order, insofar as appealed from, after a
hearing, awarded the father decision-making authority with
respect to the subject child's education and directed the
mother to not permit the maternal grandmother to be alone
with the subject child.
that the order is affirmed insofar as appealed from, without
costs or disbursements.
parties, who were never married, have one child together. In
July 2012, the father filed a petition in the Family Court
for joint custody of the child and in September 2012, the
mother filed a petition in the Family Court for sole custody
of the child. The petitions were transferred to the
Integrated Domestic Violence Part of the Supreme Court. At
the beginning of the fact-finding hearing, the father
withdrew his petition for joint custody of the child. The
father thereafter re-filed a petition seeking sole legal and
residential custody of the child. In an order dated February
17, 2016, the Supreme Court, inter alia, awarded the parties
joint legal custody of the child with residential custody to
the mother. The court awarded the mother decision-making
authority with respect to the child's medical care, and
awarded the father decision-making authority with respect to
the child's education. The court also found that the
maternal grandmother interfered with the father's
relationship with the child and was a danger to the child,
and directed that the mother not permit the maternal
grandmother to be alone with the child. The mother appeals.
joint custody is not possible because of the antagonistic
relationship between the parties, it may be appropriate,
depending upon the particular circumstances of the case, to
award some custodial decision-making authority to the
noncustodial parent" (Jacobs v Young, 107
A.D.3d 896, 897 [internal citations omitted]; see
Chamberlain v Chamberlain, 24 A.D.3d 589, 591;
Matter of Ring v Ring, 15 A.D.3d 406; Matter of
Penninipede v Penninipede, 6 A.D.3d 445, 446). "The
division of authority is usually made either somewhat evenly,
in order to maintain the respective roles of each parent in
the child's life or, although unevenly, in a manner
intended to take advantage of the strengths, demonstrated
ability, or expressed interest of the noncustodial parent
with respect to a particular dimension of child-rearing"
(Chamberlain v Chamberlain, 24 A.D.3d at 592
[citations omitted]; see Jacobs v Young, 107 A.D.3d
there was a sound and substantial basis for the Supreme
Court's determination that the father should have
decision-making authority with respect to the child's
education, even though the mother was awarded decision-making
authority with respect to the child's medical care
(see Matter of Hardy v Figueroa, 128 A.D.3d 824,
826; Matter of Ring v Ring, 15 A.D.3d at 407;
Mars v Mars, 286 A.D.2d 201; cf. Rubin v Della
Salla, 107 A.D.3d 60, 64). The court was not required to
follow the recommendation of the forensic evaluator that the
mother should have decision-making authority with respect to
the child's education. The evaluator's
recommendation, which was made two years before the court
rendered its determination, was not determinative and did not
usurp the judgment of the court (see Cunningham v
Brutman, 150 A.D.3d 815; Matter of Pitt v Reid,
111 A.D.3d 946; Matter of Nikolic v Ingrassia, 47
A.D.3d 819, 821).
was a sound and substantial basis for the Supreme Court to
direct that the mother not permit the maternal grandmother to
be alone with the child (see generally Matter of Rosetta
BB. v Joseph DD., 125 A.D.3d 1205, 1207; Matter of
Mayo v Mayo, 63 A.D.3d 1207, 1209; Bohnsack v
Bohnsack, 185 A.D.2d 533, 535).
mother's contention that the Supreme Court was biased
against her, depriving her of a fair and impartial hearing,
is without merit. Taken as a whole, the record reveals that
the hearing was conducted in a fair manner (see Matter of
Filipowski v Sullivan-Tirelli, 139 A.D.3d 1063, 1064).
Additionally, the mother's contention that the court
improperly limited further testimony from two of her fact
witnesses is unpreserved for appellate review (see Matter
of Culberson v Fisher, 130 A.D.3d 827, 829; Matter
of Kleevuort C. [Fredlyn V.], 84 A.D.3d 1371).
remaining contention of the attorney for the ...