SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

447 

CAF 15-01246 

PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ. 

 

IN THE MATTER OF SOUAD AMRANE, 

PETITIONER-RESPONDENT, 

V MEMORANDUM AND ORDER

LOTFI BELKHIR, RESPONDENT-APPELLANT. 

 

LOTFI BELKHIR, RESPONDENT-APPELLANT PRO SE.

SUSAN GRAY JONES, CANANDAIGUA, FOR PETITIONER-RESPONDENT.

ROBERT L. GOSPER, ATTORNEY FOR THE CHILDREN, CANANDAIGUA.

VICTORIA KING, ATTORNEY FOR THE CHILD, CANANDAIGUA. 

 

Appeal from an order of the Family Court, Ontario County (Maurice

Strobridge, J.H.O.), entered November 24, 2014 in a proceeding

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

continued sole custody of the minor children of the parties with

petitioner. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by awarding primary physical custody

of the two youngest children to respondent with visitation to

petitioner and as modified the order is affirmed without costs, and

the matter is remitted to Family Court, Ontario County, to fashion an

appropriate visitation schedule for those children and to determine

the best interests of the second and third eldest of the minor

children, in accordance with the following memorandum: In this

proceeding pursuant to Family Court Act article 6, respondent father

appeals from an order that, inter alia, denied his cross petition for

modification of a prior consent order and ordered that the parties’

five minor children remain in the sole custody of petitioner mother,

with visitation to the father.

We agree with the father that Family Court erred in determining

that, in seeking a change in custody, he did not meet his burden of

establishing a change in circumstances sufficient to warrant an

inquiry into whether a change in custody is in the best interests of

the children (see Matter of Pecore v Blodgett, 111 AD3d 1405, 1405, lv

denied 22 NY3d 864; Matter of Cole v Nofri, 107 AD3d 1510, 1511,

appeal dismissed and lv denied 22 NY3d 1083). Here, the evidence that

the mother was interfering with the father’s visitation with the

children was sufficient to establish the requisite change in
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CAF 15-01246 

circumstances (see Matter of Murphy v Wells, 103 AD3d 1092, 1093, lv

denied 21 NY3d 854; Matter of Tyrone W. v Dawn M.P., 27 AD3d 1147,

1148, lv denied 7 NY3d 705). We further conclude that it is in the

best interests of the two youngest children to be placed in the

primary physical custody of the father. We therefore modify the order

accordingly, and we remit the matter to Family Court to fashion an

appropriate visitation schedule for those children with the mother. 

The custody determination of the trial court generally is

entitled to great deference (see Eschbach v Eschbach, 56 NY2d 167,

173-174), but “ ‘[s]uch deference is not warranted . . . where the

custody determination lacks a sound and substantial basis in the

record’ ” (Cole, 107 AD3d at 1511). “[A] long-term custodial

arrangement established by agreement should [continue] ‘unless it is

demonstrated that the custodial parent is unfit or perhaps less fit’ ”

(Fox v Fox, 177 AD2d 209, 211), and it is well settled that “ ‘[a]

concerted effort by one parent to interfere with the other parent’s

contact with the child[ren] is so inimical to the best interests of

the child[ren] . . . as to, per se, raise a strong probability that

[the interfering parent] is unfit to act as custodial parent’ ”

(Matter of Amanda B. v Anthony B., 13 AD3d 1126, 1127). We conclude

under the circumstances of this case that leaving the two youngest

children in the mother’s custody “ ‘would be tantamount to severing

[their] relationship with [their] father, and [that] result would not

be in [their] best interest[s]’ ” (Matter of Marino v Marino, 90 AD3d

1694, 1696; see generally Matter of Howden v Keeler, 85 AD3d 1561,

1562).

Here, the mother’s acts of hostility toward the father include

instructing the children to be uncooperative and disrespectful when in

his care, and to refuse to recognize him as their father. 

Additionally, the record establishes that, on multiple occasions, the

mother refused to allow the children to leave for the father’s

visitation until the father called the police; made derogatory

comments about the father and his wife in front of the children; and

refused to communicate with the father about the children, even

failing to inform the father that one of the children underwent

surgery for appendicitis. Indeed, although the court determined that

the father failed to establish a change in circumstances and thus did

not reach the issue whether a change in custody was in the best

interests of the children, the court noted that the mother was

interfering with the father’s relationship with the children and

concluded that it “tend[ed] to agree” with the attorney for the two

youngest children that the mother’s conduct was inimical to their best

interests and that the mother was unfit to act as their custodian. 

The attorney for the three older children informed this Court at

oral argument that, in a subsequent proceeding commenced after this

appeal was perfected, Family Court awarded the father temporary

custody of the second and third eldest of the minor children; the

eldest of the minor children remains with the mother and will be 18

years old in July. “It is well settled that we may take notice of . .

. new facts . . . to the extent they indicate that the record before

us is no longer sufficient for determining” the best interests of the
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CAF 15-01246 

second and third eldest of the minor children (Matter of Gunn v Gunn,

129 AD3d 1531, 1532 [internal quotation marks omitted]; see Matter of

Michael B., 80 NY2d 299, 318), and that is the case here. We

therefore further direct Family Court on remittal to determine the

best interests of those children.

Finally, we conclude that the court did not abuse its discretion

in refusing to find the mother in contempt of court for violating the

terms of the prior custody order (see generally Matter of Kirkpatrick

v Kirkpatrick, 137 AD3d 1695, 1696).

Entered: July 1, 2016 Frances E. Cafarell

Clerk of the Court