Matter of Joseph XX. v Jah-Rai YY., 2024 NY Slip Op 00950 [226 AD3d 49]

February 22, 2024

Reynolds Fitzgerald, J.

[*1]

In the Matter of Joseph XX., Appellant-Respondent,

v

Jah-Rai YY., Respondent-Appellant. (And Six Other Related Proceedings.)

Third Department, February 22, 2024 APPEARANCES OF COUNSEL Ellen Bennett Becker , Albany, for appellant-respondent.

Amanda FiggsGanter , Albany, for respondent-appellant.

Karen R. Crandall , Schenectady, Attorney for the Child.

{**226 AD3d at 51} OPINION OF THE COURT Reynolds Fitzgerald, J. Cross-appeals from an order of the Family Court of Albany County (Susan M. Kushner, J.), entered May 12, 2022, which, among other things, partially granted petitioner’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a child (born in 2018). Pursuant to a July 2020 order entered on consent, the parties shared joint legal custody and equal parenting time, with designated sharing of Christmas, New Year’s, Mother’s and Father’s Day and Thanksgiving Day holidays and the child’s birthday. The remaining single-day holidays were to be equally {**226 AD3d at 52} shared, as mutually agreed upon. [FN1] In August 2020, the father commenced the first of these proceedings by filing two violation petitions alleging that the mother failed to bring the child to his scheduled parenting time and that she would not agree to equally sharing the single-day holidays. The father also filed a modification petition seeking a specified sharing of the single-day holidays. Thereafter, the mother filed three violation petitions alleging that the father brought the child to a public beach during the COVID-19 pandemic without informing her and brought the child to his religious services. The mother also filed a modification petition seeking final decision-making authority when the parties are unable to agree and the addition of a provision prohibiting the father from introducing the child to any religion until the child is 13 years old.

After a combined fact-finding hearing, Family Court, in a May 2022 order, dismissed all of the mother’s violation petitions and the father’s violation petition alleging that the mother failed to agree to single-day holidays. The court did find, however, that the mother willfully violated the 2020 order by refusing the father’s parenting time. [FN2] Further, Family Court found a change in circumstances and, after considering the best interests of the child, as relevant to this appeal, continued joint legal custody, but also directed the parties to attend and participate in coparenting counseling to address the issues of religion, good-faith cooperation on joint legal questions and ways to coparent more effectively, and prohibited the parties from allowing the child to attend religious services or instruction until an agreement is reached. It further ordered that in the event that an agreement regarding the child’s religion was not reached after the parties had engaged in a minimum of 20 coparenting sessions, said failure would constitute a change in circumstances allowing either party to petition the court for modification of the order. The father and the mother cross-appeal.

“The proponent of a violation petition must establish, by clear and convincing evidence, that there was a lawful court order in effect with a clear and unequivocal mandate, that the person who allegedly {**226 AD3d at 53} violated the order had actual knowledge of the order’s [*2] terms, that the alleged violator’s actions or failure to act defeated, impaired, impeded or prejudiced a right of the proponent and that the alleged violation was willful” ( Matter of Timothy RR. v Peggy SS. , 206 AD3d 1123 , 1124 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Aaron K. v Laurie K. , 187 AD3d 1423 , 1424 [3d Dept 2020]).

“This Court will accord deference to Family Court’s credibility findings, and the determination of whether to hold a party in contempt will generally not be disturbed absent an abuse of discretion” ( Matter of Clint Y. v Holly X. , 217 AD3d 1069 , 1070 [3d Dept 2023] [internal quotation marks and citations omitted]; see Matter of Craig K. v Michelle K. , 218 AD3d 977 , 978 [3d Dept 2023]). With respect to the parties’ petitions to modify the 2020 order, a parent “must first show that a change in circumstances has occurred since the entry of the existing custody order that then warrants an inquiry into what custodial arrangement is in the best interests of the child. Only after this threshold hurdle has been met will the court conduct a best interests analysis” ( Matter of Nicole B. v Franklin A. , 210 AD3d 1351 , 1353 [3d Dept 2022] [internal quotation marks and citations omitted], lv dismissed 39 NY3d 1092 [2023]; see Matter of Antonio MM. v Tara NN. , 191 AD3d 1196, 1197 [3d Dept 2021]). “Family Court’s credibility assessments and factual findings will not be disturbed as long as they have a sound and substantial basis in the record” ( Matter of Nelson UU. v Carmen VV. , 202 AD3d 1414 , 1415 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Erick RR. v Victoria SS. , 206 AD3d 1523 , 1525 [3d Dept 2022]).

[1] The mother contends that Family Court abused its discretion in finding that she willfully violated the 2020 order. At the fact-finding hearing, both parties testified and the mother submitted documentary proof. The mother also proffered the testimony of two private investigators and the maternal grandmother. The mother concedes that she withheld the child from the father in August 2020 but did so out of concern about COVID-19, and only after the father advised her that he intended to travel out of state with the child. The record confirms this. Under these circumstances, we would not characterize the violation as willful. That said, Family Court appropriately determined that the father was entitled to make-up time {**226 AD3d at 54} ( see Matter of David JJ. v Verna-Lee KK. , 207 AD3d 841 , 844 [3d Dept 2022]; Matter of Nelson UU. v Carmen VV. , 202 AD3d at 1416). [FN3] [2] The mother also contends that Family Court abused its discretion in dismissing her violation petitions. As the proponent of the violation petitions, the mother was obliged to establish that there was a lawful court order in effect with a clear and unequivocal mandate. Here, the 2020 order does not contain a prohibition restricting the father from taking the child to religious services or to a public beach, nor does it contain any COVID [*3] -19 restrictions. Although the mother implies that joint legal custody gives her an equal right in determining whether the child should be taken to a public beach during COVID-19 or to religious services, and that the father’s actions violated the order’s mandate of joint legal custody, the order does not contain a clear and unequivocal mandate restricting the father from partaking in such activities. As such, we find that Family Court properly dismissed the mother’s violation petitions ( see Matter of Clint Y. v Holly X. , 217 AD3d at 1071; Matter of Sandra R. v Matthew R. , 189 AD3d 1995 , 2000 [3d Dept 2020], lv dismissed & denied 36 NY3d 1077 [2021]).

[3] Turning to Family Court’s determination to modify the 2020 order, contrary to the father’s contention, the court did not base its finding that there had been a change in circumstances solely on the parties’ failure to agree as to the religious upbringing of the child. Rather, Family Court found a change in circumstances based on the parties’ inability to reasonably function as joint custodians for a myriad of reasons, citing specifically to each parent making unilateral choices without consulting or obtaining the approval of the other parent, their failure to respect one another and unwillingness to compromise at all on their individual views as to religion and the child, their indifference to each other’s concerns with the child’s health issues and their inability to agree on sharing parenting time for the single-day holidays or the child’s birthday, leading to continuous disputes, disagreements and police involvement. Given the foregoing, we agree that Family Court properly found a change in circumstances was established, as the parties’ ongoing conflict resulted in the parents’ inability to effectively communicate and cooperatively work together {**226 AD3d at 55} ( see Matter of Alexis WW. v Adam XX. , 220 AD3d 1094 , 1096 [3d Dept 2023]; Matter of Virginia OO. v Alan PP. , 214 AD3d 1045 , 1047 [3d Dept 2023]).

[4] The father also contends that Family Court erred in directing the parties to attend coparenting counseling and in prohibiting either parent from permitting the child to attend religious services or instruction until an agreement is reached. The mother asserts that Family Court erred in not granting her final decision-making authority. It is well settled that a court may direct a party to engage in coparenting counseling, or other treatment, as a component of a court’s custody order ( see Matter of Thompson v Wood , 156 AD3d 1279 , 1285 [3d Dept 2017]; Matter of Remillard v Luck , 2 AD3d 1179 , 1180 [3d Dept 2003]; Matter of Mongiardo v Mongiardo , 232 AD2d 741, 743 [3d Dept 1996]; Matter of Dennison v Short , 229 AD2d 676, 677 [3d Dept 1996]). Here, Family Court did not alter the parties’ shared custodial arrangement and continued joint legal custody while simultaneously directing the parties to participate in coparenting counseling to assist the parties in coparenting more effectively. Upon this record, we also find [*4] no error in Family Court declining to give the mother final decision-making authority. The coparenting counseling directive, in which neither parent is given the “last word,” represents a permissible directive and is fully supported by the evidence ( see Matter of Mongiardo v Mongiardo , 232 AD2d at 743-744; Matter of Sweet v Passno , 206 AD2d 639, 640 [3d Dept 1994]).

[5] However, we take a different view with respect to Family Court’s various directives pertaining to religion. While a court may consider religion as a factor in determining the best interests of a child in custody disputes, “it alone may not be the determinative factor” ( Aldous v Aldous , 99 AD2d 197, 199 [3d Dept 1984], appeal dismissed 63 NY2d 674 [1984], cert denied 469 US 1109 [1985]; see Cohen v Cohen , 177 AD3d 848 , 850-851 [2d Dept 2019], appeal dismissed 35 NY3d 947 [2020]). Additionally, cases that do consider religion as a factor generally fall into three separate categories: (1) when a child has developed actual religious ties to a specific religion and one parent is better able to serve those needs; (2) a religious belief violates a state statute; and (3) when a religious belief poses a threat to the child’s well-being ( see Aldous v Aldous , 99 AD2d at 199). This standard, enunciated in 1984, continues to be followed ( see Cohen v Cohen , 177 AD3d at 851; Matter of Gribeluk v Gribeluk , 120 AD3d 579 , 579 [2d Dept 2014]; Matter of VanDusen v VanDusen , 39 AD3d 893 , 894-895 [3d Dept 2007]). {**226 AD3d at 56} None of the three categories outlined in Aldous are applicable to the case before us. The July 2020 consent order granted the parties joint legal custody with equal parenting time. Notably, no reference is made to religion in the custody order. At the time the petitions were filed, the child was not quite two years old and, as such, not of an age so as to allow him to have developed actual religious ties to a specific religion. Nor does the record reveal that the father’s religious beliefs violated a state statute or threatened the child’s well-being. As a result, Family Court improperly intervened in the parties’ religious dispute ( cf. Matter of Gago v Acevedo , 214 AD2d 565, 566-567 [2d Dept 1995], lv denied 86 NY2d 706 [1995]). Thus, the court’s directives to the parties that neither parent shall permit the child to attend religious services or instruction until an agreement between the parties is reached on this issue, to address the issue of religion while participating in court-ordered coparenting counseling, and that a failure to reach an agreement with regard to religion will—after completing the court-ordered number of coparenting sessions—constitute a change in circumstances for purposes of modification, were issued in error and should be vacated..