Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re E.D. (Anonymous)

Supreme Court of New York, Second Department

July 12, 2017

In the Matter of E.D. (Anonymous), respondent,
v.
D.T. (Anonymous), appellant. (Action No.1) In the Matter of D.T. (Anonymous), appellant,
v.
E.D. (Anonymous), respondent. (Action No. 2) Docket Nos. V-1168/12, V-900/14

          Angela 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.

          Karen 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

         Appeal 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.

         ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

         The 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.

         "When 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 at 897).

         Here, 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).

         There 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).

         The 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).

         The remaining contention of the attorney for the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.