SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

818 

CAF 12-02057, CAF 12-02084 

PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND SCONIERS, JJ. 

 

IN THE MATTER OF JUAN C. LARA, 

PETITIONER-APPELLANT-RESPONDENT, 

V MEMORANDUM AND ORDER

MICHELLE B. SULLIVAN, 

RESPONDENT-RESPONDENT-APPELLANT. 

----------------------------------- 

HEIDI W. FEINBERG, ATTORNEY FOR THE 

CHILD, APPELLANT. 

 

TIMOTHY P. DONAHER, PUBLIC DEFENDER, ROCHESTER (KIMBERLY F. DUGUAY OF

COUNSEL), FOR PETITIONER-APPELLANT-RESPONDENT. 

HEIDI W. FEINBERG, ATTORNEY FOR THE CHILD, ROCHESTER, APPELLANT PRO

SE.

SHIRLEY A. GORMAN, BROCKPORT, FOR RESPONDENT-RESPONDENT-APPELLANT. 

 

Appeals and cross appeal from an order of the Family Court,

Monroe County (Joan S. Kohout, J.), entered October 9, 2012 in a

proceeding pursuant to Family Court Act article 6. The order, inter

alia, denied the petition seeking modification of a prior custody

order. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law and the facts by granting the

modification petition and as modified the order is affirmed without

costs, and the matter is remitted to Family Court, Monroe County, for

further proceedings in accordance with the following Memorandum: 

Petitioner father and the Attorney for the Child (AFC) appeal from an

order denying the father’s petition seeking to modify a 2001 order

granting respondent mother custody of the parties’ daughter by

granting custody of the 14-year-old child to him. On her cross

appeal, the mother contends that Family Court erred in finding that

she was in civil contempt for violating a 2001 order that prohibited

her from removing the parties’ daughter from the State of New York

(see Judiciary Law § 753 [A] [3]), and that she was denied effective

assistance of counsel with respect to the father’s petition alleging

that she violated the 2001 order. 

Addressing first the cross appeal, we reject the mother’s

contention that the court erred in finding her in civil contempt of

the court’s order. It is undisputed that the order prohibited her
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CAF 12-02057, CAF 12-02084 

from moving out-of-state with the parties’ child without the

permission of either the father or the court, and that the mother

moved to Maine in August 2011 without such permission. We reject the

mother’s further contention that she was denied effective assistance

of counsel. The mother failed to appear for the three days on which

the hearing was conducted, and we conclude that she failed to

establish that she was denied meaningful representation and that the

alleged deficiencies in counsel’s representation resulted in actual

prejudice (see Matter of Alisa E. [Wendy F.], 98 AD3d 1296, 1296;

Matter of Michael C., 82 AD3d 1651, 1652, lv denied 17 NY3d 704).

With respect to the father’s appeal, we note that, in support of

his modification petition, the father presented the testimony of the

mother’s parents, sister and long-term friend, as well as his own

testimony and that of a school official. The undisputed testimony

established that the child’s unmarried parents separated approximately

one year after her birth and that the father had only sporadic contact

with the child and had not seen her for four years prior to filing the

modification petition in August 2011. The father filed the

modification petition after learning that the child had been

hospitalized and that the mother intended to move with the child to

Maine. Other undisputed evidence established that the mother and

child lived with family members or a family friend for most of the

child’s life; that the mother’s family members and long-term friend

were actively involved in the care and support of the child; that the

mother was verbally abusive to the child; that the child loved her

mother but was afraid of her; that the mother refused to permit the

father to visit the child; that the mother moved to Maine in violation

of the custody order that required either the permission of the father

or Family Court; and that, after relocating to Maine, the mother and

the child lived in a cramped two-bedroom house with another family

before relocating to a shelter in a neighboring community. The AFC

advised the court that her client loved her mother but wanted to

return to live with her father in Rochester because the mother was

unpredictable, unstable and “scary.”

“Generally, a court’s determination regarding custody and

visitation issues, based upon a first-hand assessment of the

credibility of the witnesses after an evidentiary hearing, is entitled

to great weight and will not be set aside unless it lacks an

evidentiary basis in the record” (Matter of Stilson v Stilson, 93 AD3d

1222, 1223 [internal quotation marks omitted]). Here, we conclude

that the court’s determination that it is in the best interests of the

child to remain in the custody of the mother lacks a sound and

substantial basis in the record. We therefore modify the order by

granting the father’s modification petition.

As a preliminary matter, we conclude that the court abused its

discretion in failing to “draw the strongest inference that the

opposing evidence permits” against the mother based upon her failure

to appear for the hearing (Matter of Nassau County Dept. of Social

Servs. v Denise J., 87 NY2d 73, 79), although we note that the court

stated that it was doing so. Although the court properly determined

that the father failed to take steps to enforce his right to visit
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CAF 12-02057, CAF 12-02084 

with the child, the court failed to credit the testimony of the

mother’s family that the mother interfered with the father’s ability

to visit the child; that the mother disparaged the father in the

child’s presence; that, despite the court’s order granting telephone

access to the child, the access lasted only two weeks; that the mother

was verbally abusive to the child; that the child was afraid of her

mother; and that the mother exhibited behaviors that support a

determination that she failed to provide a proper home environment and

parental guidance for the child (see generally Eschbach v Eschbach, 56

NY2d 167, 172). Further, the court failed to credit the evidence,

including testimony and school records, that the mother failed to

provide for the child’s emotional development and that the child’s

intellectual and emotional development was supported by the mother’s

family members and long-term friend, rather than by the mother (see

generally Fox v Fox, 177 AD2d 209, 210). We note that there is no

evidence that the mother has the financial ability to provide for the

child and that the evidence establishes that the father has a job, a

home, and pays child support (see id.). 

 Although the court properly determined that the child “barely

knows” the father, we conclude that the court erred in failing to give

any weight to the 14-year-old child’s preference to live with the

father rather than the mother, where, as here, the record establishes

that her age and maturity would make her input “particularly

meaningful” (Matter of VanDusen v Riggs, 77 AD3d 1355, 1356 [internal

quotation marks omitted]; see Fox, 177 AD2d at 210). 

Finally, upon granting the modification petition, we remit the

matter to Family Court to establish a visitation schedule with the

mother. We note that, in connection with the motions of the father

and the AFC to expedite this appeal, this Court was advised that there

may be a court proceeding in Maine involving the mother and child. 

Family Court is therefore further directed upon remittal to coordinate

this proceeding with any court proceeding in Maine insofar as

necessary to effectuate the order of this Court (see generally Matter

of Michael B., 80 NY2d 299, 319).

Entered: July 19, 2013 Frances E. Cafarell

Clerk of the Court