Matter of Vera Y. v. Joshua Y.

Matter of Vera Y. v Joshua Y.

2026 NY Slip Op 06179 October 22, 2026 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. In the Matter of Vera Y., Respondent,

v

Joshua Y., Appellant. (Proceeding No. 1.) In the Matter of Joshua Y., Appellant, Decided and Entered:October 22, 2026

CV-24-0364

Calendar Date: September 8, 2026

Before: Pritzker, J.P., Ceresia, Powers, Corcoran And Ryba, JJ.

David P. Lapinel, Stamford, for appellant.

Lisa K. Miller, McGraw, for respondent.

Larisa Obolensky, Bovina Center, attorney for the child.

[*1]

Pritzker, J.P.

Appeal from an order of the Family Court of Delaware County (Gary Rosa, J.), entered February 8, 2024, which, among other things, partially dismissed petitioner's application, in proceeding No. 2 pursuant to Family Ct Act article 6, for custody of the parties' child.

Joshua Y. (hereinafter the father) and Vera Y. (hereinafter the mother) are the parents of the subject child (born in 2020). They resided together until June 2020 â​​ in a motel property owned by the father's parents in the hamlet of Grand Gorge, Delaware County â​​ when the mother left with the child to live with her family in the City of Poughkeepsie, Dutchess County. At this time, the mother filed a family offense petition (proceeding No. 1) and obtained an ex parte temporary order of protection which required the father to stay away from the mother and the child and immediately surrender all firearms. In July 2020, the father petitioned for custody and visitation and filed an order to show cause, requesting temporary physical custody (proceeding No. 2). Family Court modified the temporary order of protection, granting the father supervised parenting time with the child two days a week. At the father's request, the court also issued a temporary reciprocal order of protection against the mother. In August 2020, the father again petitioned for temporary physical custody and the court denied that request but continued the father's parenting time of two days per week, which it made unsupervised (proceeding No. 3). Meanwhile, the mother filed a petition for custody (proceeding No. 4) and another for child support (proceeding No. 5). In response to the support petition, the father raised the defense of interference with his visitation before the Support Magistrate, who referred the issue to Family Court. The father then brought a motion to reargue his August 2020 motion for physical custody and for an immediate hearing regarding temporary custody of the child. Family Court denied the father's motion. In October 2020, the mother filed a violation petition, alleging that the father had violated the temporary orders of protection by, among other things, failing to surrender firearms in his possession (proceeding No. 6).

An 18-day joint fact-finding hearing commenced in early December 2020 on the family offense petition, violation petitions, custody petitions and the issue of custodial interference with respect to the support petition. On this same date, Family Court issued a temporary custody and visitation order, expanding the father's weekly parenting time and setting forth a Christmas holiday schedule. While the hearing was ongoing, the mother filed another violation petition alleging that the father violated an August 2020 temporary order of protection and the December 2020 temporary custody and visitation order (proceeding No. 7). A month later, the father filed a violation petition, alleging that the mother violated the December 2020 temporary custody and visitation order (proceeding No[*2]. 8). Family Court issued a temporary custody order in March 2021, granting the father shared parenting time of the child on an alternating week schedule. In May 2021, the court issued a temporary order commanding the parents, among other things, to designate a pediatrician for the child within 15 days. In July 2021 and November 2021, the mother filed violation petitions (proceedings Nos. 9 and 10 respectively) alleging that the father refused to comply with the May 2021 temporary order to designate a pediatrician. Following the fact-finding hearing, Family Court, among other things, granted the parties joint legal custody; awarded the mother primary physical custody; granted the father liberal parenting time on an alternating week schedule; fined the father for willfully violating the temporary order of protection and the May 2021 order commanding him to designate a pediatrician; and ordered the father to pay child support. The father appeals.

1

We turn first to the father's contentions that Family Court abused its discretion in finding him in contempt for violating the June 2020 temporary order of protection by failing to surrender a firearm (proceeding No. 6) and the May 2021 order requiring the parties to designate a pediatrician (proceedings Nos. 9 and 10). "A party seeking a finding of civil contempt based upon the violation of a court order must establish by clear and convincing evidence that the party charged with contempt had actual knowledge of a lawful, clear and unequivocal order, that the charged party disobeyed that order, and that this conduct prejudiced the opposing party's rights" (Matter of Marisol Y. v Steven Z., 248 AD3d 1482, 1483-1484 [3d Dept 2026] [internal quotation marks, brackets and citations omitted]). As to violation of the June 2020 temporary order of protection, deferring to the court's credibility determinations, the evidence presented at the fact-finding hearing regarding the father's failure to surrender a firearm in violation of the order of protection provides a sound and substantial basis for finding that the father violated said order (see Matter of Ashley UU. v Ned VV., 235 AD3d 1200, 1203 [3d Dept 2025]; Matter of Brett J. v Julie K., 209 AD3d 1141, 1145 [3d Dept 2022]). We do, however, agree with the father that the court erred in holding him in contempt for violating the May 2021 order. To that end, although the father did not designate a physician in contravention of the order, we find that the order was equivocal because the court contradicted the order by stating that the parties could find a pediatrician in their respective cities, which rendered the order's directive ambiguous (see Matter of Brookover v Harris, 217 AD3d 1411, 1412 [4th Dept 2023]). In this respect, Family Court abused its discretion by granting the mother's violation petitions regarding the May 2021 order (proceedings Nos. 9 and 10) and holding the father in contempt. Accordingly, we vacate such finding and the associated $100 fine.

Next[*3], we turn to the father's contentions regarding Family Court's custody determination (proceedings Nos. 2 and

4). "In an initial custody determination, Family Court's paramount consideration is the best interests of the child, which requires the consideration of factors such as the quality of the parents' respective home environments, the need for stability in the child's life, each parent's willingness to promote a positive relationship between the child and the other parent and each parent's past performance, relative fitness and ability to provide for the child's intellectual and emotional development and overall well-being" (Matter of Dusten T. v Trisha U., 235 AD3d 1215, 1216 [3d Dept 2025] [internal quotation marks, brackets and citations omitted]). "Because Family Court is in a superior position to assess witness credibility and make findings of fact, this Court will not disturb Family Court's decision so long as it is supported by a sound and substantial basis in the record" (Matter of Thomas K. v Shauna L., 242 AD3d 1335, 1337 [3d Dept 2025] [internal quotation marks and citations omitted]).

The evidence presented during the lengthy fact-finding hearing demonstrated that each parent is loving and capable of supporting the child's intellectual and emotional development and overall well-being. Each parent has faults, which they both focused on at length during their respective testimonies and which Family Court carefully considered while fashioning the custody order. Although there was testimony regarding the parties' history of domestic violence and it is clear the parents simply do not like one another, they successfully coparented under the March 2021 temporary custody order for nearly three years while the proceedings were ongoing, demonstrating that they are both willing to promote a positive relationship between the child and the other parent. Additionally, while the testimony establishes that both parents provide a quality home environment for the child, the court's determination that the mother's residence is more appropriate for the child is supported by the record. Thus, "[a]ccording great deference to the court's opportunity to assess the witnesses' credibility and demeanor, as well as its factual findings and conclusions, we find the record provides a sound and substantial basis" that Family Court fashioned an appropriate custody and visitation order (Michael T. v Rida S., 247 AD3d 1280, 1281 [3d Dept 2026] [internal quotation marks and citations omitted]; see Matter of Alexander I. v Allison I., 246 AD3d 1230, 1232 [3d Dept 2026]; Matter of Brian Q. v Allysa R., 244 AD3d 1328, 1330-1331 [3d Dept 2025]).^FN1 We have considered the father's remaining specific contentions relative to this order and find them unpersuasive.

We turn now to the father's contentions relative to the child support award (proceeding No. 5). To the extent that the father is alleging that Family Court erred in determining that he failed to meet his burden in [*4]proving custodial interference such that he was relieved of his parental duty to support the child, we disagree. The record is devoid of any evidence of conduct by the mother demonstrating deliberate frustration or active interference with the father's visitation rights (see generally Matter of Crystal NN. v Joshua OO., 239 AD3d 1064, 1065 [3d Dept 2025]; compare Matter of Franklin v Quinones, 225 AD3d 759, 761 [2d Dept 2024], lv denied 42 NY3d 903 [2024]). However, we do agree with the father that the court violated his due process rights by entering a child support award. Although Family Court is empowered to enter a child support award (see Family Ct Act § 439 [a], [c]), throughout the fact-finding hearing the court told the parties that it would address the father's alienation claim, but that it would not determine the amount of child support that should be paid. Rather, the court informed the parties that the matter would be referred back to the Support Magistrate for purposes of setting child support. Based upon this assurance, the father was not on notice that the court would be deciding the amount of his child support obligation and did not have the opportunity to make any necessary arguments. Accordingly, we reverse that portion of the order that entered a child support award and remit the matter to Family Court for a calculation of the child support obligation in accordance with Family Ct Act §

413.

Finally, we turn to the father's contention that he was deprived of a fair hearing due to Family Court's failure to control the courtroom. To that end, a "trial court has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary" (Matter of Alex H. v Aspyn L., 191 AD3d 1393, 1394 [4th Dept 2021] [internal quotation marks and citation omitted]; see also Mainardi v Imperial Towers, 245 AD3d 701, 702 [2d Dept 2026]). To be blunt, both the mother's and the father's attorneys behaved unprofessionally throughout the protracted fact-finding, much of which was so drawn out due to the frequency with which the court had to stop the proceedings and admonish the attorneys for repeatedly verbally attacking one another. The court frequently had to scold the attorneys, threatened to turn off their microphones if they did not stop talking over one another and, on one occasion, was forced to utilize its gavel in an attempt to stop an argument between the attorneys. While on appeal the father argues that this behavior was solely on the part of the mother's attorney, this is simply not true. Despite this behavior, the court is to be commended for exhibiting great patience and restraint, briefly admonishing the attorneys and redirecting them back to the relevant issues. In that same vein, we find the father's assertions of bias devoid of merit. We have examined the father's

2