        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
                                 -3-                           818
                                           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
