Matter of Ana J. v. Nasar J.
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Matter of Ana J. v Nasar J.
2026 NY Slip Op 02020
April 2, 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 Ana J., Respondent,
v
Nasar J., Appellant. (And Two Other Related Proceedings.)
Decided and Entered:April 2, 2026
CV-25-0330
Calendar Date: February 11, 2026
Before: Garry, P.J., Aarons, Ceresia, Fisher And Mackey, JJ.
D.J. & J.A. Cirando, PLLC, Syracuse (Rebecca L. Konst of counsel), for appellant.
Christopher Hammond, Cooperstown, for respondent.
Pamela Doyle Gee, Big Flats, attorney for the child.
Mackey, J.
Appeal from an order of the Family Court of Tompkins County (Joseph Cassidy, J.), entered August 27, 2024, which, among other things, granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father), who were married but later separated, are the parents of the subject child (born in 2017). Pursuant to an August 2020 order entered upon consent, the parents shared joint legal custody of the child with equal parenting time. In September 2023, the mother filed a custody modification petition seeking sole custody of the child, alleging that the father had been physically abusive toward her and emotionally manipulative toward the child. The mother also filed a family offense petition alleging that, among other things, the father had committed harassment in the first or second degree. The father denied the mother's allegations, and cross-petitioned for sole custody of the child. A temporary order was subsequently issued, granting the mother sole custody of the child and limited visitation to the father. Following fact-finding and Lincoln hearings, Family Court granted the mother's family offense petition, finding that the father had committed harassment in the second degree, and an order of protection against the father was issued. The court further awarded the mother sole legal and primary physical custody of the child, with limited parenting time to the father.FN1 The father appeals.
Initially, we find that Family Court did not err in issuing an order of protection against the father. A party seeking an order of protection "bears the burden of showing by a preponderance of the evidence that the [other parent] committed one or more family offenses" (Matter of Paul Y. v Patricia Z., 190 AD3d 1038, 1042 [3d Dept 2021]; see Matter of Derek KK. v Jennifer KK., 196 AD3d 765, 669 [3d Dept 2021]). Pertinent here, a person commits harassment in the second degree "when, with intent to harass, annoy or alarm another person . . . [h]e or she strikes, shoves, kicks or otherwise subjects such other person to physical contact, or attempts or threatens to do the same" or "[h]e or she engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose" (Penal Law § 240.26 [1], [3]; Family Ct Act § 812). "In reviewing Family Court's determination, we pay deference to the court's factual findings and credibility determinations, and will not disturb those assessments if they are supported by a sound and substantial basis" (Matter of Samah DD. v Mark VV., 235 AD3d 1116, 1117-1118 [3d Dept 2025] [citations omitted], lv denied 44 NY3d 901 [2025]; see Matter of Holly P. v George Q., 240 AD3d 1029, 1030 [3d Dept 2025]).
At trial, the mother testified that, during their marriage, the father engaged in physical abuse against her, monitored her in the home through video surveillance [*2]without her consent, and restricted her financial freedom and her access to drive a vehicle. According to the mother, the parties briefly attempted to reconcile after their separation but that, in the fall of 2020, the father struck her in front of the child. The mother submitted photographic evidence in support of her allegations. The father wholly denied the mother's claims and, although he acknowledged having installed surveillance cameras in the home, he asserted that the same had been placed with the mother's agreement. As to the mother's claims that he had repeatedly texted her threatening or insulting messages, which she supported with documentary evidence, the father either denied the allegations or asserted that he could not recall the incidents referenced. Accepting Family Court's credibility determinations, which found the mother's account of the father's conduct to be credible and discredited the father's denials, we conclude that a preponderance of the evidence supported the determination that the father committed the family offense of harassment in the second degree (see Matter of Derek KK. v Jennifer KK., 196 AD3d at 769-770; Matter of Paul Y. v Patricia Z., 190 AD3d at 1042).
Turning to the issue of custody, "[a] party seeking to modify a prior order of custody must show that there has been a change in circumstances since the prior order and, then, if such a change occurred, that the best interests of the child would be served by a modification of that order" (Matter of Ashley UU. v Ned VV., 235 AD3d 1200, 1201 [3d Dept 2025] [internal quotation marks and citations omitted]; see Matter of Christine EE. v David FF., 235 AD3d 1156, 1157 [3d Dept 2025]). In rendering a best interests determination, "courts must consider a variety of factors, including 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 Michael M. v Makiko M., 238 AD3d 1304, 1306 [3d Dept 2025] [internal quotations marks and citations omitted]; see Ricky SS. v Christine SS., 241 AD3d 1009, 1011 [3d Dept 2025]). "Inasmuch as Family Court is in a superior position to evaluate witness credibility, this Court will defer to its factual findings and only assess whether its determination is supported by a sound and substantial basis in the record" (Matter of Michael M. v Makiko M., 238 AD3d at 1305 [internal quotation marks and citations omitted]; see Matter of Kyle I. v Kandice K., 232 AD3d 1074, 1076 [3d Dept 2024]).
We find ample record evidence that "the parties' relationship has deteriorated to a point where there is no meaningful communication or cooperation for the sake of the child" so as to establish the requisite change in circumstances warranting Family [*3]Court's examination of the child's best interests (Matter of Michael M. v Makiko M., 238 AD3d at 1305 [internal quotation marks and citations omitted]; see Matter of Debra YY. v Michael XX., 234 AD3d 1021, 1022 [3d Dept 2025]; Matter of Richard CC.
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