        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
                                 -2-                           447
                                                         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
                                 -3-                           447
                                                         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
