State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 16, 2015 518959 

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In the Matter of NATHANIEL

SHOKRALLA,

Appellant,

v MEMORANDUM AND ORDER

ICELEE BANKS,

Respondent.

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Calendar Date: June 1, 2015

Before: Lahtinen, J.P., Lynch, Devine and Clark, JJ.

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John Ferrara, Monticello, for appellant.

Jane M. Bloom, Monticello, for respondent.

Michael C. Ross, Bloomingburg, attorney for the children.

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Lahtinen, J.P.

Appeal from an amended order of the Family Court of

Sullivan County (McGuire, J.), entered April 17, 2014, which

dismissed 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 unmarried parents of three

daughters (born in 2004, 2005 and 2008). In 2008, they separated

and, in 2011, the father petitioned for visitation, which

resulted in a consent order in March 2012 providing him with
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visitation one weekend per month.1 Ongoing hostility and lack of

cooperation by the parties led to a series of petitions

including, among others, the father seeking custody and the

mother asserting that the father violated the March 2012 order,

as well as also seeking to terminate the father's parenting time

based upon allegations of his conduct with the mother's adult

daughter from another relationship. Following a hearing, Family

Court dismissed many of the parties' petitions and, as relevant

on appeal, issued an amended order in April 2014 directing that

the mother have sole legal and physical custody with increased

parenting time for the father to include, among other things, all

weekends except the fourth weekend of each month. The father

appeals, arguing that Family Court improperly indicated a gender

preference of placing girls with their mother and also did not

give appropriate weight to the mother's acts in undermining his

relationship with the children.

Modifying an existing custody order "requires a petitioner

to establish 'a change in circumstances reflecting a real need

for change in order to insure the continued best interest[s] of

the child[ren]'" (Matter of Twiss v Brennan, 82 AD3d 1533, 1534

[2011], quoting Matter of Robert SS. v Ashley TT., 75 AD3d 780,

781 [2010]). The change in circumstances element is not disputed

on appeal and, in any event, is supported by the record. Factors

pertinent to a best interests analysis include, among others,

"the relative fitness, stability, past performance, and home

environment of the parents, as well as their ability to guide and

nurture the children and foster a relationship with the other

parent" (Matter of Arieda v Aridea-Walek, 74 AD3d 1432, 1433

[2010] [internal quotation marks and citation omitted]). Family

Court's lengthy oral decision wandered at times to some matters

that had little, if any, relevance in a best interests analysis. 

However, "our authority in custody cases 'is as broad as that of

the hearing court'" (Matter of Martin v Mills, 94 AD3d 1364, 1365

[2012], quoting Matter of Aylward v Bailey, 91 AD3d 1135, 1136

[2012]), and upon our independent review of the entire record –

1 Although the March 2012 order did not clearly set forth

physical custody to the mother, the parties do not contest that

she had such custody.
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while disregarding Family Court's comments on matters not

relevant in the best interests analysis – we find that there is

ample proof that placing legal and physical custody with the

mother was in the children's best interests.

The mother has been the children's primary caregiver

throughout their lives and particularly after the parties

separated in 2008. The father acknowledged that he did not visit

the children for three years after separating from the mother

during a time when he was "try[ing] to find [him]self." Even

after he had resumed a relationship with the children in 2012, he

showed little active interest in or knowledge of their health

care or education. He lived in a two-bedroom apartment about 100

miles from where the mother resides. The father worked an all

night shift and, while at work, the children would have to be in

the care of one of his two nearby brothers, who were 19 and 23

years old.

The mother clearly had exhibited some deficiencies of

concern, particularly regarding her lack of cooperation with the

father. Family Court had dealt severely with the mother on such

issue and, if she does not improve, it could be an important

factor if further proceedings ensue (see Matter of Dobies v

Brefka, 83 AD3d 1148, 1151 [2011]). However, there were also

concerns about the father's cooperation with the mother, as well

as his other actions. Significantly, the mother had provided a

stable home and adequate care for the children throughout their

lives. She was actively involved in their education, health care

and all important aspects of their daily lives. Both parties had

made some unwise decisions and had, at times, shown less than

stellar parenting skills. Nonetheless, upon consideration of the

entire record, as well as the transcripts from the Lincoln

hearings, the credible proof supports the custody and visitation

order as ultimately fashioned by Family Court. The remaining

arguments are unavailing.

Lynch, Devine and Clark, JJ., concur.
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ORDERED that the amended order is affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court