Matter of Duran v Contreras, 2024 NY Slip Op 02912 [227 AD3d 1068]

May 29, 2024

Appellate Division, Second Department

[*1]

In the Matter of Manuel Duran, Appellant,

v

Diana E. Contreras, Respondent.

Christian P. Myrill, Jamaica, NY, for appellant.

Fariah Amin, New York, NY, for respondent.

Liberty Aldrich, Brooklyn, NY (Janet Neustaetter of counsel), attorney for the child.

In related proceedings pursuant to Family Court Act articles 6 and 8, the father appeals from an order of the Supreme Court, Queens County (IDV Part) (Elisa S. Koenderman, J.), dated December 15, 2022, as amended. The order, insofar as appealed from, after a hearing, granted the mother’s petition for sole legal and physical custody of the parties’ child and imposed certain conditions upon the father’s parental access, found that the father had committed, inter alia, the family offenses of sexual abuse in the third degree and harassment in the second degree, and directed the issuance of a two-year order of protection in favor of the mother and against the father.

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

The father and the mother have one child together. By order dated July 18, 2017, the father was awarded temporary custody of the child. In August 2017, the father filed a violation petition and a family offense petition. Thereafter, in September 2017, the mother filed a family offense petition, alleging that the father had committed, inter alia, the family offenses of sexual abuse in the third degree and harassment in the second degree against her. In orders dated September 11, 2017, the father was granted a temporary order of protection against the mother, the mother was granted a temporary order of protection against the father, and the father’s violation petition was dismissed for failure to state a cause of action. In October 2017, the mother filed a petition seeking sole legal and physical custody of the child. Also in October 2017, the mother filed a petition alleging that the father had violated the order of protection. After a hearing, the Supreme Court granted the mother’s petition for sole legal and physical custody of the child and imposed certain conditions upon the father’s parental access, found that the father had committed, among other things, the family offenses of sexual abuse in the third degree and harassment in the second degree, and directed the issuance of a two-year order of protection in favor of the mother and against the father. The father appeals.

“In a child custody case, the court’s paramount concern is to determine, under the totality of the circumstances, what is in the best interests of the child” ( Matter of Carrington v [*2] Fowler , 222 AD3d 747 , 747-748 [2023]; see Eschbach v Eschbach , 56 NY2d 167, 171 [1982]; Hogan v Hogan , 159 AD3d 679 , 680 [2018]). “In determining what custody arrangement is in the child’s best interests, the court should consider several factors, including ‘the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child’s emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent’ ” ( Matter of Carrington v Fowler , 222 AD3d at 748, quoting Matter of Baptiste v Gregoire , 140 AD3d 746 , 747 [2016]; see Hogan v Hogan , 159 AD3d at 680-681). “Insofar as custody determinations largely turn on assessments of the credibility, character, temperament, and sincerity of the parties, the hearing court’s determination should not be disturbed unless it lacks a sound and substantial basis in the record” ( Matter of Carrington v Fowler , 222 AD3d at 748; see Matter of Gulzar v Gulzar , 173 AD3d 1183 , 1184 [2019]; Hogan v Hogan , 159 AD3d at 681). The existence or absence of any one factor in determining custody cannot be determinative on appellate review since the court is to consider the totality of the circumstances ( see Eschbach v Eschbach , 56 NY2d at 174; Matter of Luke v Erskine , 222 AD3d 868 , 870 [2023]). However, a custodial parent’s interference with the relationship between a child and the noncustodial parent is deemed an act 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 custodial parent ( see Matter of Luke v Erskine , 222 AD3d at 871; Matter of Brown v Simon , 195 AD3d 806 , 821 [2021]).

The Supreme Court’s determination awarding the mother sole legal and physical custody of the child, which was based upon, inter alia, the assessment of the testimony of the mother, the father, and a forensic evaluator, has a sound and substantial basis in the record. The record established, among other things, that the father interfered with the relationship between the mother and the child by making false allegations to the Administration for Children’s Services (hereinafter ACS) and by encouraging the child to lie to ACS, so as to raise a strong probability that he was unfit to act as custodial parent. Moreover, the record established that the father’s numerous unfounded allegations of abuse and neglect undermined the mother’s attempts to form and maintain a relationship with the child ( see Matter of Brown v Simon , 195 AD3d 806 [2021]) and that the investigations associated with the father’s allegations were traumatic for the child ( see Matter of Beyer v Tranelli-Ashe , 195 AD2d 972, 973 [1993]).

Contrary to the father’s contention, the Supreme Court gave appropriate weight to the forensic evaluator’s testimony. The recommendations of the court-appointed forensic evaluator, although not determinative, are entitled to some weight, unless contradicted by the evidence ( see Matter of Marino v Sanfilippo , 190 AD3d 974 , 977 [2021]; Matter of Dante v Dante , 170 AD3d 829 , 831 [2019]). The forensic evaluator’s conclusions were supported by the evidence at the hearing.

Furthermore, the Supreme Court was required to, and properly did, consider the deleterious effect on the child of the acts of domestic violence committed by the father against the mother in the home ( see Domestic Relations Law § 240 [1] [a]; Matter of Frankie CC. v Rachel CC. , 225 AD3d 1112 , 1114 [2024]; Matter of Robert C. E. v Felicia N. F. , 197 AD3d 100 , 104 [2021]), as those allegations were proven by a preponderance of the evidence.

Accordingly, the Supreme Court properly determined that it was in the child’s best interests to award sole legal and physical custody of the child to the mother.

“In a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence” ( Matter of Townes v Diggs , 216 AD3d 1104 , 1105 [2023] [internal quotation marks omitted]; see Family Ct Act § 832). “Whether a family offense was committed is a factual issue to be resolved by the [hearing court], and that court’s determination of credibility issues is entitled to great weight on appeal and should not be disturbed unless clearly unsupported by the record” ( Matter of Davis v Wright , 140 AD3d 753 , 754 [2016]; see Matter of Townes v Diggs , 216 AD3d at 1105).

A person commits harassment in the second degree when that person, “with intent to harass, annoy or alarm another person[,] . . . strikes, shoves, kicks or otherwise subjects such other [*3] person to physical contact, or attempts or threatens to do the same; or . . . engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose” (Penal Law § 240.26 [1], [3]). “A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent” ( id. § 130.55). Contrary to the father’s contentions, a fair preponderance of the evidence adduced at the hearing established that he committed the family offenses of harassment in the second degree and sexual abuse in the third degree. There is no basis to disturb the Supreme Court’s credibility determinations ( see Matter of Limanov v Limanov , 225 AD3d 872 , 874 [2024]; Matter of Frias v Arroyo , 225 AD3d 697 , 699-700 [2024]).

The father’s remaining contentions are without merit. Connolly, J.P., Wooten, Dowling and Love, JJ., concur..