Matter of Masci v. Romero

Matter of Masci v Romero 2026 NY Slip Op 05632 October 2, 2026 Appellate Division, Fourth 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 JOSEPH MASCI, PETITIONER-RESPONDENT, v JESSICA ROMERO, RESPONDENT-APPELLANT. ----------------------------------------------------- GARY MULDOON, ESQ., ATTORNEY FOR THE CHILD, APPELLANT. Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department Decided on October 2, 2026 602 CAF 25-00930 Present: Bannister, J.P., Montour, Greenwood, Nowak, And Hannah, JJ. BRIAN P. DEGNAN, BATAVIA, FOR RESPONDENT-APPELLANT. GARY MULDOON, ROCHESTER, ATTORNEY FOR THE CHILD, APPELLANT PRO SE. Appeals from an order of the Family Court, Ontario County (Kristina Karle, J.), dated May 16, 2025, in a proceeding pursuant to Family Court Act article 6. The order, among other things, granted petitioner sole legal custody and primary physical placement of the subject child. [*1] It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs. Memorandum: In this Family Court Act article 6 proceeding, respondent mother and the Attorney for the Child (AFC) separately appeal from an order that, inter alia, awarded petitioner father sole legal and primary physical custody of the subject child. We affirm. Contrary to the mother's contention, the father established that a sufficient change in circumstances existed to warrant an inquiry into whether modification of the existing custody agreement would be in the child's best interests (see Matter of Grabowski v Smith, 182 AD3d 1002, 1003 [4th Dept 2020], lv denied 35 NY3d 910 [2020]; Matter of Ladd v Krupp, 136 AD3d 1391, 1392 [4th Dept 2016]). "It is well settled that a change in circumstances may be demonstrated by, inter alia, . . . interference with the noncustodial parent's visitation rights and/or telephone access" (Matter of Cheney v Cheney, 118 AD3d 1358, 1359 [4th Dept 2014] [internal quotation marks and emphasis omitted]; see Matter of Dubiel v Schaefer, 108 AD3d 1093, 1093-1094 [4th Dept 2013]; see generally Matter of Moreno v Elliott, 170 AD3d 1610, 1611 [4th Dept 2019]), and, here, the mother admitted that, before the filing of the father's modification petition, she violated the existing agreement by interfering with the father's visitation and telephonic access with the child on numerous occasions. The mother further contends that Family Court erred in considering her conduct after the filing of the father's petition. While the court may not consider evidence of postpetition conduct on the issue of change in circumstances (see Matter of Klee v Schill, 95 AD3d 1599, 1601 n 4 [3d Dept 2012]), the mother failed to establish that the court did so. Rather, we conclude that the court appropriately considered evidence of postpetition conduct to determine the best interests of the child (see generally Matter of Jill Q. v James R., 185 AD3d 1106, 1110 [3d Dept 2020]). The mother further contends that the court erred in awarding the father sole legal and primary physical custody of the child; the AFC contends that additional visitation should be awarded to the mother. We reject both contentions. It is well settled that "[a] court's custody determination, including its evaluation of a child's best interests, is entitled to great deference [*2]and will not be disturbed as long as it is supported by a sound and substantial basis in the record" (Matter of Deas v Contreras, 244 AD3d 1789, 1789 [4th Dept 2025] [internal quotation marks omitted]; see Sheridan v Sheridan, 129 AD3d 1567, 1568 [4th Dept 2015]), and here, the court's determination is supported by a sound and substantial basis in the record. Entered: October 2, 2026 Ann Dillon Flynn Clerk of the Court