DECISION AND ORDERAFTER HEARING After a hearing held before this Court, and for the reasons set forth in the accompanying decision, it is HEREBY ORDERED: that the Petitioner’s application to grant a change of custody is denied and dismissed.PROCEDURAL HISTORY:The petitioner (hereinafter “father”), and the respondent (hereinafter “mother”) testified as did the current husband of the mother, as well as the paternal grandmother. In analyzing the evidentiary record, the Court had the unique ability to observe the in-court testimony of the parties and the witnesses. As such, the Court observed the demeanor of the parties and the witness, the manner in which they testified, the substance and tone of their testimony, and was able to arrive at an overall basic assessment of their credibility. The Court has weighed the testimony, character, temperament and sincerity of the parties and the witnesses and the documentary evidence placed on the by the Parties. Based on the totality of the circumstances, the Court finds that there is a sound and substantial basis in the record to make the following findings of fact and conclusions of law.FINDINGS OF FACT:The evidence showed that the mother and father were never married and have one child in common, the subject child (hereinafter the “child”). At the time of the filing of the instant petition the parties were not cohabitating. On April 29, 2014, an Order of Custody was granted on consent giving the mother legal and residential custody of the child. On November 3, 2017, the father filed the instant verified petition seeking a change of custody from the mother to himself. In his petition, the father alleged that while the child was at a sleep over in the home shared by the current mother-in-law of the child’s mother (hereinafter” MIL”), and AS, the stepbrother, (hereinafter ‘stepbrother”) of the mother’s current husband, the child was sexually abused by the stepbrother. Based on the allegations as averred by the father, this court granted a temporary order of custody to the father.APPLICABLE LAW:A party seeking modification of an existing custody arrangement must show the existence of a change of circumstances such that modification is required to ensure the continue best interest of the child see Lopez v. Chasquetti, 148 A.D. 3d 1151 ([2nd dept.,] 2017), also see Matter of Sparacio v. Fitzgerald, 73 A.D. 3d 790 ([3rd Dept.,] 2017).The petitioner has failed to make a showing of a change of circumstances which would warrant a change of custody from the mother to the father.In making this determination, the Court is required to consider the totality of the circumstances, and must determine if one of the parties is unfit, the nature and quality of the relationship between the parties, and the existence of a prior settlement. Although not dispositive, the Court must also consider the position of the attorney for the child. See Strand-O’Shea v. O’Shea, 32 A.D. 3d 398 ([2nd Dept.,]). See also Matter of Fallarino v. Ayala, 41 A.D. 3d 714 ([2nd Dept.,] 2007), Baker v. Baker, 66 A.D. 3d 722 ([2nd Dept.,] 2009). At the conclusion of the hearing, neither of the parties, nor the attorney for the child, requested that the Court hold an in camera interview with the child, however, according to the attorney for the child, the child wishes to continue to reside with the father.In essence, the father’s position is predicated on the argument that the mother should be held responsible for an intentional act, of sexual abuse committed against the child by the stepbrother while not in the mother’s care. However, the father failed to demonstrate that the mother knew of, or should have known that the stepbrother posed a danger to the child. The evidence showed that the stepbrother and the MIL resided together in the home in which the incident is alleged to have occurred in September of 2017. The evidence showed that the child and the stepbrother had been acquainted, since the child was approximately two years old and that the child had spent time in the home on prior occasions without incident. The evidence showed that this act of sexual abuse by the stepbrother against the child is alleged to have occurred on the only time that the child had an overnight visit at the stepbrother’s home. The evidence showed that the mother was not present during the incident, and was not made aware of the allegations for nearly two months after the incident had occurred.There is no evidence in the record to support the father’s contention that the mother was aware, or should have been aware, that the stepbrother posed a danger to the child. Neither the mother, nor the father testified that the stepbrother had on any prior occasion exhibited inappropriate behavior, while in the child’s presence. The stepbrother has never resided with the child. There was no evidence showing that there has been any contact between the stepbrother, and the mother since the reporting of this incident. Both parties testified that the child has not had any contact with the stepbrother, since being informed of the allegation. Furthermore, the mother testified that she would ensure that there would not be any further contact between the child and the stepbrother. The evidence showed that the child has been engaged in weekly therapy sessions since the incident.In his written summation, counsel for the father, references two cases in which the Court granted a change of custody after an allegation of sexual abuse had been made. However, in both cases cited by counsel, the evidence showed that the custodial parent either knew, or should have known of the abuse which had occurred, and had failed to take measures to protect the child. That key factor is simply not present in the case at bar. See Matter of Lauire H v. Raymond, JJ, 68 AD 3d 1170 ([3rd Dept.,] 2009), Quick v. Quick, 227 AD 2d 666 ([3rd Dept.,] 1996).Even in instances where a parent has displayed “serious parenting lapses” Courts in this state have been reluctant to find a basis to change custody. See Matter of Chery v. Richardson, 88 A.D. 3d 788 ([2nd Dept.,] 2011). The Court notes that the parties were only made aware of the incident in November of 2017, several months after the abuse had occurred.In considering the testimonial evidence, the record clearly shows that the father has failed to demonstrate that the mother is unfit, or unable to provide the child with a suitable and supportive living environment. The father has failed to show that there exists a sound and substantial basis for this Court to change custody.Based on the foregoing, the Petitioner’s application for a change of custody is hereby denied and dismissed.ORDERED: The petition of the petitioner-father, dated November 3, 2017 seeking custody of the subject child, is hereby denied and dismissed.ORDERED: The temporary Order of Custody to the father is vacated.ORDERED: The mother is Ordered to maintain the child’s current psychotherapy sessions.ORDERED: The mother is Ordered not to permit any contact between the child and AS, nor is the mother to allow the child to be in the home of AS.Dated: July 16, 2018.
