On February 13, 2015, Plaintiff filed the pending motion to reconsider and set aside that portion of the [January 20, 2015,] order granting immunity to Defendants, arguing that, under an opinion released by the Court of Appeals on February 6, 2015, after the Court entered its Order, Defendants forfeited their immunity by, among other things, acting in bad faith. On February 18, 2015, Plaintiff filed a Notice of Appeal, without giving this Court the opportunity to rule on the pending motion. Plaintiff appeals from the very Order that she now seeks the Court to revisit. A Notice of Appeal generally divests the trial court of jurisdiction. If the Court of Appeals concludes that this Court does, in fact, still retain jurisdiction to consider Plaintiff's motion, the Court finds and concludes as follows: Plaintiff's motion is not properly brought under either CR 59, as a motion to alter, amend or vacate, because more than 10 days passed before the motion was filed; and, not proper as a [CR] 60.02 motion because there is an adequate remedy available for Plaintiff on appeal. The primary basis of the Court's Order dismissing Plaintiff's claims against Defendants was that her claims were time-barred. Defendants argued in the alternative the issue of quasi-judicial immunity and the Court agreed that if Plaintiff's claims were not time-barred, the Defendants would likely enjoy quasi-judicial immunity. Plaintiff now argues that Defendants Feinberg and Rouse forfeited any immunity they may have enjoyed because they acted in bad faith and showed a lack of impartiality and that she recently "discovered" that Defendant Feinberg had come to the same conclusion in the J.S. v. Berla case rendered by the Court of Appeals on February 6, 2015 and, as a result, this Court should reconsider its opinion. The Court disagrees. This Court determined that Plaintiff's claims were time-barred. That said, even if the case was not time-barred, the Court found they all enjoyed at a minimum quasi-judicial immunity. Plaintiff alleges that Defendant Feinberg and Defendant *689Rouse forfeited their immunity because, during the course of the custodial evaluation, they acted in bad faith and/or showed a lack of impartiality. Plaintiff has failed to allege how she was harmed by the alleged actions of Defendant Feinberg and Defendant Rouse. Based on this Court's review of the Fayette Family Court record, the Fayette Family Court ordered Dr. Feinberg and Ms. Rouse to conduct a custodial evaluation and ordered Plaintiff's ex-husband, Defendant Patten, to pay for the evaluation. After completing the evaluation in August 2011, Dr. Feinberg, with the assistance of Ms. Rouse, recommended that Plaintiff be awarded custody of her children. At the subsequent dissolution hearing, the Court awarded Plaintiff primary custody of her children. In December 2011, Plaintiff and Defendant Patten entered into a settlement agreement. Both parties were represented by counsel. They agreed to closely follow Dr. Feinberg's recommendations, namely, Plaintiff admits in her motion that Dr. Feinberg recommended, and Plaintiff and Defendant Patten agreed, that he would have no visitation or time-sharing, supervised or otherwise, until he completed anger management and reconciliation therapy. Plaintiff admitted to the Court in her response to Defendants' motion to dismiss that Defendant Patten has had no contact with the children since April 2011, shortly after Dr. Feinberg's custody evaluation began. Plaintiff complains that Dr. Feinberg and/or Ms. Rouse became aware of but failed to report allegations of suspected sexual abuse by Defendant Patten against the children in March 2011 and that his failure constitutes bad faith sufficient to strip Dr. Feinberg and Ms. Rouse of protected immunity. Two separate Cabinet investigations were conducted during the time that Dr. Feinberg and Ms. Rouse conducted their custodial evaluation. As previously noted, Defendant Patten has not had any contact with the children since April 2011. Additionally, Plaintiff argues that Dr. Feinberg and Ms. Rouse lacked the requisite impartiality to cloak them with immunity. She argues in her motion that Defendant Patten hired Dr. Feinberg and that Dr. Feinberg and Ms. Rouse, inter alia , "altered Plaintiff's psychological testing [and] deleted favorable provisions of [her] psychological testing," "deleted unfavorable provisions of Mr. Patten's psychological testing," "ignored Mr. Patten's pornography obsession," "failed to interview Mr. Patten's sister, who reported deviant sexual actions by Mr. Patten[.]" What facts or portions of the evaluation that Dr. Feinberg decided to include, or omit, from his report is left to his discretion. The Fayette Family Court ordered Dr. Feinberg to conduct a custody evaluation and ordered Defendant Patten to pay for the evaluation. Dr. Feinberg recommended that Plaintiff be awarded custody of her children. The Fayette Family Court accepted Dr. Feinberg's recommendation and awarded Plaintiff <mask> of her children. Plaintiff and Defendant Patten incorporated many of Dr. Feinberg's recommendations into their settlement agreement in December of 2011. And, most importantly, Defendant Patten has not had any access to the children since April of 2011. Dr. Feinberg's exercise of judgment and discretion has not had any adverse effect on Plaintiff. Plaintiff's claims against Defendant Feinberg and Defendant Rouse ... are precisely the kind of claims that quasi-judicial immunity protects. See *690Stone v. Glass , 35 S.W.3d 827 (Ky. Ct. App. 2000). Even if this case were not time-barred, the Court finds and concludes that based on the foregoing, that Defendant Feinberg and Defendant Rouse are entitled to the protection of quasi-judicial immunity. The court included the necessary finality language, and Nave filed a notice of appeal on June 10, 2015, naming Dr. Feinberg and Rouse as appellees.5 The three appeals have been consolidated for all purposes.6


The June 2017 dispositional report recommended that the petition's allegations be sustained, the petition be dismissed, and mother, who was in the process of divorcing father, be awarded <mask> of Daniela. Mother stated that she believed stepdaughter "100 percent" and had "no doubt" that the allegations of sexual abuse were true. Father continued to deny the allegations and said he did "not know why [stepdaughter] would lie," though he speculated that she was aware his and mother's "relationship [was] disintegrating" and might be taking mother's side. He opposed the Agency's recommendations and expressed a desire for shared custody of or visitation with Daniela. Although Daniela had stated during her CASARC interview that she would be "sad" if separated from father, she now said she did not want visits with him.


The parties had entered into a separation agreement prior to the entry of the decree of divorce. The agreement which, by its terms, was to survive any decree of divorce which might be obtained, accorded the defendant the right of visitation during one week end in each month, and further provided that the plaintiff would be free to establish a domicile for herself and the issue of the marriage in any place in the United States, provided due notice were given the defendant. The provisions of the separation agreement were not incorporated into the judgment. The judgment of divorce gave plaintiff <mask> of the infant, giving the defendant 1 ‘ reasonable rights of visitation.”


When Justice Levitt’s order was reversed the plaintiff once again had <mask> of the children. Although the parties continued to share the physical custody there was no evidence that they agreed to continue or acquiesced in the support provisions of Justice Levitt’s order (i.e., share the expenses). Quite the contrary, the plaintiff made several demands upon the defendant for the child support as provided in the separation agreement. While the court can imply the parties’ intent where there is silence in the agreement, it cannot rewrite an agreement. Once plaintiff had again sole custody of the children the parties were bound by the separation agreement.


The stated policy of this State has long been established that custody of children should remain constant and stable. Where an award of <mask> has been made, it will not be changed unless there has been a showing of a substantial change in circumstances which adversely affects the children and makes a change of custody necessary in their best interest, or unless it is shown that the custodial parent is unfit. (Schuler v Schuler, 29 AD2d 669.) It is also clear that the burden of establishing the substantial change of circumstances rests upon the party seeking the modification. (Dintruff v McGreevey, 42 AD2d 809, affd 34 NY2d 887.) The same standards must be applied to an award of joint custody. To hold otherwise, would be to decree that an award of joint custody is actually no award at all, for it could be changed at the whim of either parent.


The Hawaiian divorce decree, incorporating the separation agreement gave <mask> as previously indicated to Odette R. However, the father Douglas R. has been able to show that there has been a material change of circumstances so as to render it in the best interests of these children to modify the original decree. Such material change in conditions are: (1) the mother has had a psychiatric break-down and is still undergoing psychiatric therapy. Her complete recovery, as well as avoiding great stress in the future by sharing responsibility for the children are important factors in her relationship with her children. (2) the father is now remarried with a stable home environment for the children.


On December 12, 2014, Bianka filed a petition under the UPA naming Gladys as the respondent.3 The petition alleges Gladys is Bianka's mother and requests a court order awarding sole legal and physical custody to Gladys. Both Bianka and Gladys submitted declarations in support of the petition. As the basis of her custody request, Bianka asserted her biological father, Jorge, abandoned her physically, emotionally, and financially before her birth. Bianka asked the court to find that her father abandoned her within the meaning of Family Code section 7822, subdivision (a)(3),4 and place her in her mother's <mask>. In addition, Bianka asserted Jorge had beaten her mother while she was pregnant. Bianka cited Jorge's domestic violence as another factor relevant to the court's custody determination and argued his conduct constituted abuse within the meaning of the Family Code. Bianka went on to argue that Jorge's abandonment also provided a factual basis for an order containing SIJ findings. Both Bianka and Gladys submitted declarations in support of the petition, in which they recounted Jorge's abuse and abandonment.


Contrary to the mother’s contention, under the circumstances presented here, the Family Court providently exercised its discretion by, in effect, granting the father’s petition for <mask> of the child Lawrence, Jr., and by, in effect, granting the father’s separate petition to modify a prior custody order so as to award him sole custody of the child Larry, Jr. The Family Court possessed adequate relevant information to enable it, without a hearing, to make an informed and provident determination that it was in the best interests of the subject children to award sole custody to the father (see Assini v Assini, 11 AD3d 417 [2004]; Matter of Porter v Burgey, 266 AD2d 552 [1999]).


Leo J. Fallon, J. Before the court is an application by defendants pursuant to CPLR 3211 (a) (7) for an order dismissing this action by reason of its failure to state a cause of action. The facts as they pertain to this motion are as follows: The plaintiff in this *280action was divorced by a judgment of this court filed December 28, 1977 which inter alla awarded joint custody of plaintiffs daughter. The issue of the daughter’s custody came back before the court in the form of a postjudgment application during which the Honorable George F. Francis ordered a forensic examination to aid the court in its determination of that motion. Pursuant to the court’s directive of June 7, 1985, the parties did in fact submit to certain counseling before defendant Kenneth Condrell, the psychologist selected by the court. Ultimately, defendant made certain recommendations to the court relative to custody of the child which are said to have been relied upon by the court in awarding <mask> of the child to plaintiffs former husband.


Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a son (born in 2005). In July 2010, Family Court issued an order which, among other things, continued in effect an August 2008 order, entered upon stipulation of the parties, whereby the mother had <mask> of the child and the father had alternating weekend parenting time from Friday at 8:00 p.m. until Sunday at 6:00 p.m., as well as such other parenting time as agreed to by the parties. In August 2011, the father commenced the first two of these proceedings, seeking, among other things, modification of the custodial relationship and alleging the mother’s violation thereof. One month later, the father commenced a third proceeding, alleging that the mother’s harassment of him constituted a family offense.


In adjudicating custody and visitation rights, the court’s paramount concern is the best interests of the children (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Felty v Felty, 108 AD3d 705, 706 [2013]; Matter of Haimovici v Haimovici, 73 AD3d 1058, 1058 [2010]). Where, as here, the court has conducted a complete evidentiary hearing on the issues of custody and visitation, its findings must be accorded great weight, and its custody and visitation determination will not be disturbed unless it lacks a sound and substantial basis in the record (see Eschbach v Eschbach, 56 NY2d at 173; Matter of Felty v Felty, 108 AD3d at 707; Matter of Waldron v Dussek, 48 AD3d 471, 472 [2008]). The Supreme Court’s determination that it was in the best interests of the children to award <mask> to the father has a sound and substantial basis in the *989record and, accordingly, we decline to disturb it (see Matter of Guzman v Pizarro, 102 AD3d 964, 965 [2013]).


After trial of the issues but before Family Court’s decision, petitioner twice moved for an order of contempt, claiming that respondent had wilfully violated the parties’ custodial arrangement by failing to adhere to the Christmas 1992 visitation schedule. Family Court (1) awarded <mask> of the children to respondent, finding that joint custody was not an available option in the circumstances, and (2) found that both respondent and petitioner were available for the emotional growth of the children and possessed comparable abilities to provide for such growth, and that the home environment in the care of each parent was positive. Family Court also found that the best interests of the children mandated that petitioner be awarded liberal visitation and set forth an explicit visitation schedule. In a supplemental/amended order which considered petitioner’s contempt motions, Family Court, inter alia, found that respondent wilfully violated petitioner’s rights of visitation, but declined to impose sanctions. Petitioner appeals both the order and the amended order.


The Family Court providently exercised its discretion in dismissing, without a hearing, the mother’s petition to modify an existing custody order so as to award her <mask> of the subject child and to award only daytime visitation to the father until he obtains “suitable housing.” The mother was required to make “an evidentiary showing sufficient to warrant a hearing” based upon a subsequent change in circumstances (Matter of Grant v Hunter, 64 AD3d 779, 779 [2009]), such that a modification is necessary to ensure the continued best interests and welfare of the child (see Matter of Gurewich v Gurewich, 58 AD3d 628, 629 [2009]). The mother failed to do so (see Matter of Palmiotti v Piscitelli, 100 AD3d 637, 638 [2012]; Matter of Dowgiallo v Williams, 99 AD3d 708 [2012]; Matter of Aronowich-Culhane v Fournier, 94 AD3d 1114 [2012]; Matter of Mazurkiewicz v Pindor-Mazurkiewicz, 80 AD3d 615 [2011]).


Neither Dr. Demby nor Mr. D. proposes that either parent have <mask>. I agree with that approach in this case. Each of these parents has serious parenting deficiencies. Ms. R. is too permissive and too disorganized to create the stable structured environment that J. needs in order to overcome his learning limitations. She does not have appropriate boundaries, as demonstrated by her actions of repeatedly speaking to J.’s teachers about her personal problems even after being asked not to do so, bringing J. along to her therapy sessions and A.’s hypnosis sessions, and talking to J. inappropriately about his father. Mr. D. is not warm, affectionate or empathetic and does not understand J. emotionally. Neither of these parents is a better parent than the other to the degree that either of them should be privileged over the other as the custodial parent.


Lawrence E. Kahn, J. This motion is made by plaintiff Richard A. Rusin for an order pursuant to section 240 of the Domestic Relations Law modifying the directions contained in the final judgment entered in this action the 6th day of October, 1977 for the care, custody and control of Theresa Jean Rusin, the child of plaintiff and defendant, by directing that plaintiff father be entitled to <mask> and that defendant, Camille A. Rusin Lundberg, the mother, be entitled to visit the child at all reasonable times.


In addition to Burns and Hendricks's children, Hendricks has given birth to three other children. Her rights to one of those children has been terminated, and her other two children are in the <mask> of their father. Hendricks's parental rights to EB and LB were also terminated in this action; however, Hendricks is not a party to this appeal.


Finally, Kali argues that the custody order should be set aside because the family court failed to appoint a guardian ad litem (GAL) for S.J.C. during the custody proceeding. However, Kali did not raise this issue at any point before the *419family court. Furthermore, while a GAL must be appointed for a child in termination proceedings, KRS2 625.041, appointment of a GAL in custody matters is generally permissive. See Morgan v. Getter , 441 S.W.3d 94, 106 (Ky. 2014), citing FCRPP3 6(2). Given Kali's failure to raise this matter in support of her CR 60.02 motion before the family court, we decline to address the issue further. Consequently, any matters relating to custody must be addressed in the Grayson Circuit action based upon Kali's prior waiver of her superior right to <mask>.


*624On or about July 21, 2006, Lissette went to Florida to visit the mother for the six-week period provided in the stipulation. Lissette did not return on September 1, and the mother did not provide the father with any information as to when she would return. The father then brought on a motion by order to show cause to hold the mother in contempt, to give him <mask> of Lissette and for other relief. The order to show cause, signed on September 21, 2006, also directed the mother to return Lissette forthwith. The return date of the order to show cause was October 11, 2006.


The parties were divorced in El Paso, Texas, and the mother was awarded <mask> of the minor child. With the permission of a Texas court, the mother moved to New York shortly after the divorce became final. The divorce judgment contained extensive provisions for visitation, which included the requirement that the father travel to New York to pick his son up for both short-term and long-term visitation periods. Additionally, the judgment provided that the Texas courts relinquished jurisdiction over the visitation upon the relocation of the mother and child to New York.


Shortly thereafter, Mother and Father were reincarcerated. The family court suspended Father's visitation and awarded L.B. and B.B. <mask>. Both biological parents were paroled in 2016. Father's Day, June 19, 2016, was the last day either Father or Mother visited with Child. Both were reincarcerated in 2017, when Mother violated the terms of her parole and the Commonwealth charged Father with robbery.


Here, the 2018 Modification Judgment granted Father's motion to modify the 2014 Judgment. Under the 2014 Judgment, Mother had sole legal and physical custody of Daughter. The 2018 Modification Judgment awarded joint legal and physical custody as well as transferred residential custody of Daughter from Mother to Father. In order to modify the 2014 Judgment, Father must have shown a change in circumstances since the 2014 Judgment. Section 452.410.1. Notably, that change must be substantial because the trial court reversed Mother's <mask> and removed Daughter from the home where she lived with Mother from approximately age five to age nine. Tienter, 482 S.W.3d at 490 (citing Russell, 210 S.W.3d at 197 );


In Sooy v Sooy (101 AD2d 287, affd sub nom. Matter of Louise E. S. v W. Stephen S., 64 NY2d 946) the Third Department determined that the Family Court did not abuse its *34discretion in awarding petitioner counsel fees in a custodial dispute (supra, 101 AD2d, at 291). Although that opinion does not recite the precise procedural history of the case, review of the record on appeal discloses that the Supreme Court judgment of divorce did not refer the custody issue to the Family Court (see, Domestic Relations Law § 251; Family Ct Act § 651 [a]), but rather, awarded joint custody and ordered "that either party upon application to an appropriate court, shall be entitled to a determination as to the <mask> of the child”. Thereafter an original petition was filed in Family Court for determination of custody and attorney’s fees were awarded in the course of that proceeding.


BACKGROUND A December 2018 decree dissolved the parties’ marriage. The court awarded the parties joint legal and physical cus- tody of their four children: two daughters born in 2003 and 2005, respectively, and two sons, born in 2004 and 2007, respectively. The court ordered Matthew to pay child support of $2,000 per month for four children, which would decrease by $500 a month each time a child was no longer eligible to receive support. A child support calculation was not attached to the decree. Within 8 months, both parties sought to modify the decree. They alleged a material change in circumstances with respect to custody and child support. Prior to trial, the parties resolved custody and parenting time issues. They agreed for Krystal to have <mask> of the parties’ two daughters. The district court conducted a trial concerning child support. It received into evidence the child support calculation used - 347 - Nebraska Supreme Court Advance Sheets 310 Nebraska Reports KEISER v. KEISER Cite as 310 Neb. 345


Daniel asks this court not to remand the case to the circuit court and to award him <mask> of the children. However, because the circuit court maintained the joint-custody arrangement, it made no findings regarding this issue. As such, in order to accommodate his request, we would be forced to make factual and credibility findings, which can only be made by the circuit court. See Doss , 2010 Ark. App. 95, 377 S.W.3d 348.


The new firm succeeding to and carrying on the business of that which had preceded it, with the testator as one of its members, liquidated and settled the affairs of the old firm, and carried on and transacted the same business. This business-continued until October, 1871, when the firm failed, and in consequence of its failure a very large loss, amounting to near the sum of $150,000, *186was sustained by the testator’s estate. In this loss the interest of the plaintiff in the estate was to a very great extent included, and it was to protect herself against that loss that this action was instituted and carried on by her. In support of it the evidence established the fact that the loss was caused solely by the conduct and mismanagement of the plaintiff’s half-brother George G. Wilmerding. From the time of his appointment as executor under the will he had sole control of the financial affairs of the estate down to the time of the failure of his firm, when the management was taken out of his hands by the defendant John McKesson, concerning whose conduct after that time no complaint whatever has been made. The executor George G. Wilmerding also had, during the time mentioned, the sole control and custody of the' securities of the estate, the other executor, McKesson, interfering no further than to select and approve of securities in which the financial capital of .the estate was chiefly invested. As these were selected or approved by McKesson they were taken by the executor George G. Wilmerding and a corresponding amount of the funds of the estate invested in them, and after the securities were so taken they remained in the <mask> and charge of himself.


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 Krug v Krug, 55 AD3d 1373, 1374 [4th Dept 2008] [internal quotation marks omitted]; see Matter of Crill v Crill, 181 AD3d 1199, 1200 [4th Dept 2020]). Here, we reject the mother's contention that Family Court's determination is not supported by a sound and substantial basis in the record. To the contrary, after reviewing the appropriate factors (see generally Fox v Fox, 177 AD2d 209, 210-211 [4th Dept 1992]), we conclude that the totality of the circumstances supports the court's determination that it is in the best interests of the subject children to award <mask> and primary physical residence to the father (see Eschbach v Eschbach, 56 NY2d 167, 174 [1982]; Matter of Marino v Marino, 90 AD3d 1694, 1695 [4th Dept 2011]). With respect to the mother's specific contention that the court erred by separating the subject children from the mother's other children, it is well settled that "the presence of half siblings of the child[ren] in [the mother's] home is not dispositive, although it is a factor to be considered in making custody determinations" (Matter of Slade v Hosack, 77 AD3d 1409, 1409 [4th Dept 2010]; see generally Eschbach, 56 NY2d at 173). Here, the record reflects that the subject children were previously separated from their half siblings when the mother assaulted two of those siblings, which led to all of the mother's children being initially placed in foster care, and the two subject children being placed with the father thereafter. Based on those factors and the other evidence in the record, we conclude that the court's determination that it is in the best interests of the subject children that they be separated from their half siblings is supported by a sound and substantial basis in the record (see Matter of Curry v Reese, 145 AD3d 1475, 1476 [4th Dept 2016]; Matter of Luke v Luke, 90 AD3d 1179, 1182 [3d Dept 2011]; see also Matter of Colleen F. v Frank K., 49 AD3d 1228, 1230 [4th Dept 2008]).


Memorandum: On appeal from an order granting <mask> of the subject children to petitioner, a nonparent, respondent mother contends that Family Court erred in failing to conduct an evidentiary hearing to determine whether extraordinary circumstances exist and, if so, to determine the best interests of the children. We agree, and we therefore reverse the order and remit the matter to Family Court for the requisite evidentiary hearing. It is well settled that, “as between a parent and a nonparent, the parent has a superior right to custody that cannot be denied unless the nonparent establishes that the parent has relinquished that right because of ‘surrender, abandonment, *1571persisting neglect, unfitness or other like extraordinary circumstances’ ” (Matter of Gary G. v Roslyn P., 248 AD2d 980, 981 [1998], quoting Matter of Bennett v Jeffreys, 40 NY2d 543, 544 [1976]). “ ‘[T]he nonparent has the burden of proving that extraordinary circumstances exist, and until such circumstances are shown, the court does not reach the issue of the best interests of the child[ren]’ ” (Matter of Ruggieri v Bryan, 23 AD3d 991, 992 [2005]). Here, the court “deprived a biological parent of custody of [her] child[ren] without the . . . [requisite evidentiary] hearing” on the issues of extraordinary circumstances and best interests (Matter of Stiles v Orshal, 290 AD2d 824, 825 [2002]). Instead of conducting the hearing on the date it was to begin, the court asked the parents what witnesses would be called on their behalf. When the parents responded that they would be testifying but had no other witnesses, the court stated that it found no triable issues of fact and granted the nonparent’s petition for custody. Thus, the court failed to place the burden of proof on the nonparent to prove that extraordinary circumstances exist. Finally, we note that the home study on which the court relied was potentially out of date when the court granted the petition.


Upon our review of the record, we find no reason to disturb the Supreme Court’s award of <mask> of the child to the father (see, Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89). After performing comprehensive *542evaluations of the parties, a court-appointed psychiatrist and a court-appointed psychologist both concluded that the father was the more appropriate custodial parent. The mother was found to suffer from, among other things, severe depression, persecutorial delusions, extreme emotional lability (openess to change), exceedingly poor judgment, and distortion of reality, all of which impaired her parenting skills. Her unfounded allegations that the father had sexually abused the child and physically abused her are further evidence of her unfitness to act as the custodial parent (see, Nir v Nir, 172 AD2d 651).


We hold that the circuit court did not err by granting <mask> to Consuela. In making its decision, the court relied on the facts that Consuela had been the primary caregiver during the parties' marriage and that since the divorce, she had continued to be the primary decision-maker regarding the children's educational and medical matters. Further, as to the domestic abuse, many of the contentions concerning the abuse were credibility determinations to be decided by the circuit court. See Wise v. Wise , 2010 Ark. App. 184, 374 S.W.3d 704. Accordingly, we cannot say that the circuit court erred in finding that it was in the children's best interest for Consuela to have sole custody.


Three situations are conceivable in this connection, and the language employed in their adjudication has, in certain instances, been superficially contradictory, if the reader fails to recollect the different basic principles which are applicable. The first two of these situations relate to the manner of holding of the particular asset in question prior to the time it came into the unrestricted possession of the cofiduciary by whom it was misapplied. In this regard, a distinction is to be drawn between a case in which the item in question was an asset or the proceeds of an asset, which was in the actual physical possession of both cofiduciaries prior to the time when its unrestricted control was intrusted to one of their number and one in which it was merely one which they were entitled to reduce to possession, which act had not actually been performed. In the former situation, a cofiduciary who surrenders *296to his associate the asset or proceeds thereof, of which he had previously held joint ownership, will be held liable, if such associate wastes or converts it after he had achieved <mask> thereof. Where, however, the asset had not previously been reduced to the possession of either fiduciary, one will not be held responsible for the devastavit of his cofiduciary merely because he did not insist upon receiving personal or joint control thereof.


The turning over to Wilkinson of the unregistered bonds purchased by Halstead presents the question of just what deliverey of assets by a trustee to his cotrustees renders the former liable. It has been frequently held, and the rule is now well established, that where a trustee unnecessarily surrenders the joint custody of funds to the <mask> of his cotrustees he becomes liable for the application of the funds by his cotrustees. Purdy v. Lynch, 145 N. Y. 462; Nanz v. Oakley, 120 id. 84; Bruen v. Gillet, 115 id. 10; Paulding v. Sharkey, 88 id. 432; Matter of Provost, 87 App. Div. 90.


The Judicial Council has not yet adopted rules regarding SIJ findings made by courts in the family law division. However, the Judicial Council forms8 developed for use in family law matters contemplate SIJ findings may be requested in the following proceedings: petition for dissolution of a *425marriage or domestic partnership; petition to establish a parental relationship; petition for custody and support of minor child(ren); and a petition for a domestic violence restraining order. (Judicial Council Forms, form FL-356.) In all cases, the petitions must request sole physical custody of the child. (Ibid. ) Courts may also make SIJ findings in connection with an adoption request or other proceeding in which <mask> of the child is requested. (Ibid. )


After considering the record as a whole, we find that the circumstantial evidence that might support a finding of a "conspiracy” or an attempt to "program” Jazzmin to make false allegations does not outweigh the testimony of several highly regarded experts, and Jazzmin’s own therapist, none of whom found any reason to doubt the veracity of her assertions. And, having duly considered the testimony presented on *905respondent’s behalf, including that of her therapist who was critical of Kuntz’s methods, yet when pressed admitted that she was uncertain as to whether any abuse had occurred, we are of the view that a modification of the previous custody arrangement is warranted. Accordingly, petitioner is hereby awarded <mask> of Allexxia, with Family Court to establish an appropriate schedule of supervised visitation along with such other conditions as it deems appropriate (see, Matter of McCauliffe v Peace, 176 AD2d 382, 384, supra).


Both motions to dismiss this appeal are denied. The requests encompassed within those motions to take judicial notice of records from the Louisiana dependency court proceedings are granted. The juvenile court's orders terminating jurisdiction and related exit orders awarding <mask> of C.W. to Rusty are reversed, and the case is remanded for further proceedings consistent with this opinion. The clerk of this court is directed to send a copy of this opinion immediately upon its filing to the clerk of the Louisiana juvenile dependency court.


I foresee a time when judges who are called upon to determine parenting issues will be able to proceed directly to deciding decision-making without having to make unnecessary, and sometimes detrimental, custodial designations. But, in light of current appellate case authority, it seems that such a time has not yet arrived. Accordingly, in addition to determining how the parties will handle decision-making, I will decide what form legal custody will take. In particular, I will determine if the custodial designation should be joint custody to both parties or <mask> to the mother.


Family Court’s order should be affirmed. Respondent’s argument that the evidence was insufficient to support the award of <mask> of the children to petitioner is without merit. In this case, a "fair interpretation of the evidence” (Matter of Bogert v Rickard, 199 AD2d 587, 588) supports Family Court’s conclusions (see, Matter of Liccione v John H., 65 NY2d 826, 827-828). The evidence indicates that respondent becomes violent when intoxicated and has, on numerous occasions in the past, verbally and physically abused petitioner (see, Vogel v Vogel, 149 AD2d 501, 502).


The father has offered his testimony upon his application to intervene. It appears therefrom that he is now and for sometime past, and particularly during all of the year 1931, was in the hotel business at New Lebanon Center, Columbia county, in this State. Differences between husband and wife arose, and on April 27, 1926, the parties entered into the usual form of separation agreement upon the express consideration “ of the sum of $1.00 to each party hereto by the other duly paid * * * and for the other considerations herein contained." The contract provided that the wife should have the <mask> of and control of the children “ without any interference on the part of the party of the first part." Privilege to see the children at times convenient to the wife was therein given the husband. There was the further stipulation that if the parties should become reconciled the agreement should be void.


Here, Bianka's parentage petition indicates she is seeking a <mask> order as well as an order containing SIJ findings. Although the petition cites the SIJ statute as well as Code of Civil Procedure section 155, the petition does not indicate Bianka seeks an order specifically finding that Jorge abandoned her and/or committed acts of domestic violence against Gladys. Consistent with the due process principles discussed above, we hold that in a default proceeding under the UPA, a court may only issue an order containing SIJ findings regarding parental abuse, neglect, abandonment or other similar actions if those factual allegations were contained in the original petition or in a request for order served together with the summons and a copy of the petition. Only in such circumstances would a parent be on notice of the potential for a negative factual finding of abuse, neglect or abandonment.


documents it had received and considered6 and heard the parties’ arguments. Mother claimed father hit one of the children, and asked the court to award her full physical and legal custody, with father having no visitation or contact with the children. She admitted that a child welfare services investigation resulted in a finding that the claim was unsubstantiated. When father’s counsel stated that mother was making the same allegations as in July 2020, mother responded that there had not been another investigation because she did not have physical evidence. The court observed that it “kind of [saw] a pattern here of you wanting to come to court constantly and get <mask> of the [children].” It asked mother about exhibits she had lodged that the court had seen before dealing with mother’s allegation of rape in Las Vegas, including a text message from January 2017, which she had submitted to the court “on multiple occasions.” The court asked mother what relevance the allegation had to the present proceeding: “The court: . . . I’ve seen these things. I’ve heard from you on this issue before. It seems to me . . . that . . . you get a result that you don’t like and then you come back to court a few months later. [¶] And [father] has to hire an attorney, go through the expense, miss time from work, go through the stress and strain of having to wonder what’s going to happen at court. And then there’s—then it’s resolved. Then a few months later, we’re dealing with the same issue again. [¶] . . . [¶] . . . So let me ask you. What does that


Modification of an existing court-sanctioned custody arrangement is permissible only upon a showing that there has been a change in circumstances such that modification is necessary to ensure the continued best interests of the children (see Matter of Chery v Richardson, 88 AD3d 788, 788 [2011]; Matter of Conforti v Conforti, 46 AD3d 877 [2007]; Matter of Strand-O’Shea v O’Shea, 32 AD3d 398 [2006]; Matter of Rho v Rho, 19 AD3d 605, 606 [2005]; Matter of Dow v Dow, 306 AD2d 529, 530 [2003]). The court must consider the totality of the circumstances (see Matter of Strand-O’Shea v O’Shea, 32 AD3d at 398). The evidence adduced at the hearing in the instant matter established that the mother’s apartment had become a “harried and chaotic environment” that did not provide the subject children with the focused attention and structure they needed for success in school and intellectual development. Further, the evi*731dence established that the mother had failed to provide appropriate medical attention to the children, who apparently suffered from seizure disorders and asthma. Accordingly, the record reflects that a change in circumstances had occurred, and the evidence supported the Family Court’s determination that awarding <mask> of the subject children to the father was in their best interests (see Matter of Conforti v Conforti, 46 AD3d at 878; Matter of Battista v Fasano, 41 AD3d at 713).


We agree with respondent’s contention that the court failed *1033to make the necessary findings to justify a change of custody. However, we reject respondent’s further contention that the record is insufficient to justify the court’s conclusion that the best interests of the child require a change of the joint custodial arrangement to one of <mask> with petitioner. Where the record is sufficiently complete, we can make our own findings of fact in the interests of judicial economy and the well-being of the child (see, Matter of Milton v Dennis, 96 AD2d 628).


5. Prior to awarding the appropriate custody arrangement in the best interest of the child, the court shall consider each of the following as follows: (1) Joint physical and joint legal custody to both parents, which shall not be denied solely for the reason that one parent opposes a joint physical and joint legal custody award. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes; (2) Joint physical custody with one party granted sole legal custody. The residence of one of the parents shall be designated as the address of the child for mailing and educational purposes; (3) Joint legal custody with one party granted sole physical custody; (4) <mask> to either parent; or (5) Third-party custody or visitation: (a) When the court finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child, then custody, temporary custody or visitation may be awarded to any other person or persons deemed by the court to be suitable and able to provide an adequate and stable environment for the child. Before the court awards custody, temporary custody or visitation to a third person under this subdivision, the court shall make that person a party to the action; (b) Under the provisions of this subsection, any person may petition the court to intervene as a party in interest at any time as provided by supreme court rule. (Emphasis added).


In March 2016, father began to suspect mother was using drugs and sought an ex parte order granting him temporary <mask> of the girls. Mother acknowledged she was actively using methamphetamine and agreed to a stipulated custody order giving father sole custody on a temporary basis. Under that order, which was issued in April 2016 and titled "stipulation and order for temporary custody and visitation," mother was allowed visitation "upon mutual agreement between the parties." According to father, mother tried to arrange visits or at least speak with the girls three times in the following month, but he refused based on his family therapist's advice that allowing mother to contact or visit would be stressful for the girls. A few weeks later, in mid-May, mother left a voice message for the girls on father's phone and texted father asking him to play it for them. Father again refused, responding that the therapist did not want the girls to listen to her message "because you are trying to guilt the girls into calling." At trial, mother said she stopped trying to contact or see the girls after that because she felt she was "hitting a wall with [father]." She didn't want fights with him to be a "trigger for her addictions" so she decided to focus on getting healthy and fighting for custody in family court.


Despite all the factors favoring a co-parenting arrangement, there is one flaw, at least from the mother’s perspective, that calls into question whether shared decision-making is feasible in this instance: the father’s vexatious personality. According to the mother—and others in the father’s professional and personal life—he can be argumentative, contentious and rigid. It is the mother’s position that because the father can be so difficult to co-parent with, she should be awarded sole decision-making authority over all spheres, and by implication, be deemed to have <mask> of their child. The father, while conceding that joint decision-making is not viable, argues that he and the mother should each have final decision-making authority over specified zones, and by implication, they both should be deemed to have joint custody of their son.1


On March 1, 2012 the Superior Court of Arizona, Mohave County, granted Hector and Sandra's petition and awarded them <mask> of Cora and P.L. In June 2016 the court terminated Brittney and Joseph's parent-child relationship with Cora and P.L., finding in part that they were unable to discharge their parental responsibilities due to a 20-year history of substance abuse.


Viewing the totality of the circumstances, and according deference to Family Court’s credibility determinations, there is a *1350sound and substantial basis in the record to support Family Court’s determination that it is in the child’s best interests to transfer sole legal and physical custody of him to the father (see Matter of Keefe v Adam, 85 AD3d at 1226-1227; Matter of Dobies v Brefka, 83 AD3d at 1151-1152; Matter of Seacord v Seacord, 81 AD3d at 1104). The mother’s interference with the father’s visitation rights and inappropriate conduct at the custody exchanges are detrimental to the child, and her hostile and egregious conduct toward the father in front of the child reflects her unwillingness to promote and encourage a relationship between the father and the child. Accordingly, we discern no basis upon which to disturb Family Court’s award of <mask> to the father with supervised visitation with the mother. The mother’s remaining arguments have been considered and found to be without merit.


It is well settled that where a will directs the trustee to pay income to a beneficiary the latter has an absolute right to receive it which is enforcible by his committee or guardian if he is under a legal disability. (Matter of Bearns, 251 App. Div. 222, affd. 276 N. Y. 590; Gasquet v. Pollock, 1 App. Div. 512, affd. 158 N. Y. 734.) On the other hand, where the direction is to apply income to ihe use of the beneficiary the trustee must exercise its own discretion in disbursing funds and it cannot avoid that responsibility by making payment to a committee, guardian, or donee of a power in trust. (New York Trust Co. v. Black, 178 App. Div. 4, affd. 223 N. Y. 703; Matter of McCormick, 40 App. Div. 73, affd. 163 N. Y. 551; Matter of Connolly, 71 Misc. 388; see Matter of Leeds, 23 N. Y. S. 2d 679, 694.) Whether the trustee is to “ pay ” or “ apply ” depends on the intention of the testator. A direction to 1 ‘ apply ’ ’ income may even be construed to require payment directly to the beneficiary. (Matter of Bearns, supra.) A trust to “ pay over ” income to a beneficiary is valid within section 96 of the Real Property Law authorizing trusts to ‘1 apply ’ ’ income because payment of the income to the beneficiary is an application thereof. (Leggett v. Perkins, 2 N. Y. 297; Moore v. Hegeman, 72 N. Y. 376.) Here, although the testator used the words “ to pay over ”, he did not direct the trustees “ to pay over ” to the infant. Rather he directed them ‘ ‘ to pay over such income or portion of such income * * * for the support, mainte*588nance and education of ” the beneficiary. (Emphasis supplied.) In addition, he expressly conferred discretion upon the trustees to determine the amount of income to be paid out, the payment intervals, and the specific purposes for which the funds are to be used. It would he unreasonably circuitous and expensive for the trustees to make payment of the amounts they deem “ necessary or desirable ” to the donee of the power in trust who in turn would have to pay them out for the use of the infant. This is especially so because the donee is one of the two trustees and the widow, who has the <mask> of the infant, is the other. Both acting jointly need make but one decision concerning the use of income or principal. It is held that the trustees are fully authorized under the terms of the will to apply income and principal to the use of the beneficiary. Payment to the petitioner in his capacity as donee of the power in trust is therefore unnecessary.


In this matter, petitioner mother, Reine R., seeks leave to change the name of her son, born xx/xx/2009, from “Gabriel N.M.” to “Gabriel N.R.” The petitioner and the child’s father, Brayner M., were divorced by judgment of divorce granted on xx/xx/2013 (Adams, J.) and entered in the Nassau County Clerk’s Office on xx/xx/2013. Previously, pursuant to agreement of the parties and as ordered by a xx/xx/2011 Nassau County Family Court order (Stack, J.H.O.), the petitioner was awarded <mask> of the child and the father was awarded liberal visitation, as well as access to the child’s health and education records. Petitioner was later remarried to Anthony J.R. on xx/ xx/2014.


The court also failed to give any weight to the fact that during the course of visitation, the mother continued to engage in conduct that undermined Scarlet and Pascal’s trust. For example, the mother assured Scarlet that she could continue to live with the father, while simultaneously seeking <mask>, and she used a visit that Pascal and Scarlet had with their sister Tallulah to secretly record their conversations. When Scarlet and Pascal discussed their feelings with the mother in therapy, the mother discounted those sentiments as the result of their father’s brainwashing, which, as counsel for Tallulah recognizes, “had to frustrate the older children and would make it reasonable for Scarlet to believe she wasn’t being heard.” In addition, the supervisor of therapeutic visitation testified that there were occasions when the mother made negative statements about the father, to which Pascal and Scarlet responded in a hurt manner.


Daniel next argues that the circuit court erred by not granting <mask> to him. He asserts that the court disregarded the facts that Consuela married a felon and that they have a volatile relationship. He cites Arkansas Code Annotated section 9-13-101(c) (Repl. 2013) and asserts that the court failed to recognize the rebuttable presumption that the children be placed with him.


The court placed the children with Father, who had tested negative for drugs, and ordered Mother to participate in individual counseling, drug testing, and parenting classes. On August 6, 2010, Mother advised DCFS that she was moving to Ontario and did not intend to return home. She believed Father took good care of the children and they would not miss her. As a result, jurisdiction was terminated for Mother's failure to comply with the court's orders and Father was granted <mask> of the children. Monitored visits were ordered for Mother. Mother moved back in with Father and the children in 2013 or 2014. Mother cared for Alexzander and Catrina while Father worked.


In none of these cases before us in this opinion was the lesser finding of neglect by narcotic abuse actually made, since none successfully rebutted the presumption by affirmative proof of good care of the children and swift rehabilitative measures *369for the addicted parent. All respondents were expressly advised of the opportunity and some made the effort to establish the defense but failed to prevail. So the finding of abuse by addiction required in each of these cases “ removal of [the] child from his home,” except for the 15-year-old boy in the “ Bond ” matter where his safety was demonstrated and the presumption thus rebutted for the time being. But rehabilitative measures were imposed by the court, sometimes in the community, sometimes in an open residential program. Progress hearings were scheduled by the court, usually in two or three months, for further disposition. Visitation under proper supervision was allowed when desired and if indicated. ‘ ‘ Removal of such child from his home ” was interpreted not literally, but as the Legislature is believed to have intended, that is to say, sometimes by removal of the addicted parent from the home, leaving the child in the same physical home but in the <mask> of a nonaddicted parent or other suitable relative or person. If no such nonaddicted suitable person was available, a removal to a foster home or shelter home program was ordered to protect the child. The very same alternatives are available to a child if found ‘ ‘ neglected ” by an addicted parent but not “abused” by an addicted parent, also with the alternative of leaving the addicted parent in the child’s home on condition of another suitable person living there who can protect the child if needed.


In December 1994, after extensive litigation during which defendant instructed Paul Weiss to “leave no stones unturned” and to work “full-speed-ahead in every front that could be pursued,” defendant was granted a divorce in New York and was awarded <mask>. For the next four years, the divorce and custody issues were relitigated in the Italian courts, where defendant was granted a divorce and sole custody. The custody aspect of the award was eventually reversed on appeal and Staller granted custody. Although defendant had Italian counsel in Italy, plaintiff law firm worked with Italian counsel at defendant’s request.


Pursuant to a separation agreement which was subse*781quently incorporated but not merged into a judgment of divorce, petitioner and respondent shared joint custody of their two children. Respondent retained physical custody of the children, while petitioner had visitation rights and was obligated to pay child support. Petitioner thereafter sought <mask> of both children on the grounds that respondent was not providing for the children’s physical and emotional needs by failing to provide medical attention when necessary, failing to feed and clothe them properly and in using excessive corporal punishment. Respondent opposed the petition and cross-petitioned for sole custody.


The instant action was brought in this court for a divorce predicated upon a subsisting judgment of separation. The separation action was instituted by the wife in the Supreme Court, Nassau County, where, on May 26, 1967, she was granted judgment on the ground of “ cruel and inhuman treatment ”. The judgment awarded <mask> of the infant daughter of the parties, now four years of age, to the mother, with certain visitation rights to the father. Among these, it was ordered that the father “ shall have the right to take the child for two weeks during the summer months commencing with the year 1968 ”.


Having decided that this court has jurisdiction over this action, the court must now address the substantive aspects of this case. In regards to the application for pendente lite custody of the children, the court is mindful that the general rule in this State is that a child should not be removed from his domicile without the consent of the other spouse. Usually the cases involve a custodial parent removing a child against the wishes of a noncustodial parent. In those cases the courts have traditionally looked with disfavor on any move which unreasonably interferes with the noncustodial spouse’s visitation rights. (See, Weiss v Weiss, 52 NY2d 170; Strahl v Strahl, 66 AD2d 571, affd 49 NY2d 1036.) In the present case neither parent had <mask>. Thus, the rights of both are equal and would be stronger than those of a noncustodial parent in regard to preventing a child’s removal from the jurisdiction.


“ * * * No doubt under this provision of the will Julia Rix could dispose of the property for her needs and requirements and her judgment in this matter would be conclusive. A very broad and liberal interpretation would be given to her power of disposal. We need not try to forecast all the instances in which such a legatee could dispose of the property. We are dealing here with the sole question whether on approaching death she could give it away absolutely and without any consideration. We have already held *942that she could not dispose of the property coming to her from her husband by will. Here was an attempted gift made at the same time that she made her will, and within thirty days of her death. It has all the indicia of an attempted gift in place of a testamentary disposition. If the bequests by will were void, so likewise should be this attempted gift. . “ * * * In this will the testator says that the property he gives his wife is to be her absolute property, provided, however, that upon her death or remarriage, whatever shall remain undisposed of shall go to Ms heirs. What does he mean by ‘ remain undisposed of? ’ I am inclined to think the intention was to limit the power of disposition for her use, comfort, benefit or support, and that these words should have a very .broad and liberal interpretation, so much so that Julia Rix would probably be the sole judge of what was for her benefit and enjoyment. Such disposition, however, and such user would call for the exercise of good faith upon the part of Julia Rix, and would not include a gift of the property in view of approaching death solely for the benefit of her blood relatives in no way connected with her husband, Asa W. S. Rix. * * * “ The tendency of the courts to place these reasonable limitations upon the power of disposition under such a will may. be gathered from the following cases. (Peck v. Smith, 183 App. Div. 336, p. 343; revd., 227 N. Y. 228 on other grounds. See, also, cases cited above and the following: Goodrich v. Henderson, 221 Mass. 234; Richards v. Morrison, 101 Me. 424; Presbyterian Church v. Mize, 181 Ky. 567; Bevans v. Murray, 251 Ill. 603; Griffin v. Kitchen, 225 Mass. 331; Farlin v. Sanborn, 161 Mich. 615; Gibson v. Gibson, 239 Mo. 490.) ” To the same effect are the cases of Terry v. Rector, etc., St Stephen’s Church (79 App. Div. 527) and Wells v. Seeley (47 Hun, 109). Even stronger indications are present in Vincent v. Rix (supra) of intent to make an absolute gift of the estate to the life tenant than here, since the <mask> of the assets were given to her as legal life tenant without the intervention of a trustee. The reasonable limitations upon the right of invasion of the principal of the trust referred to by Judge Crane in Vincent v. Rix (supra) must be applied to the language of the will here. In order, therefore, to determine the amount which Mrs. Pool may in good faith want or desire for her use, comfort, benefit or support, I have placed tMs matter upon my calendar for a hearing on the 16th day of June,. 1942, at 11:30 a. m. Proceed accordingly.


Additionally, as previously stated, evidence of a parent’s conduct before and after the statutory 6-month period is also relevant to determine whether the purpose or intent of the parent was to abandon the child. See id. In considering the time prior to the 6-month timeframe, there was evidence that Haley and Theodore had a close relationship for the first 7 years of Theodore’s life. Haley lived with Theodore until he was 5 years old and, after Tyson attained <mask> of Theodore in 2017, saw him on a regular basis during her parenting time. Haley testified that she and Theodore would do various activities together and that she would support him at his extracurricular events. Haley’s mother testified that Haley would often express a desire to see Theodore. There was also evidence that Tyson had denied Haley parenting time during her designated weekends in April and May 2019. Haley requested phone calls with Theodore in May, June, July, and November. Haley texted and video called Tyson in June and July in an effort to reach Theodore. In November, Haley emailed Tyson requesting parenting time with Theodore. Haley also testified to calling Tyson repeatedly in 2019 to speak to Theodore. Both Haley and her mother testified that Haley had purchased Theodore birthday and Christmas gifts and was storing the gifts until Haley was permitted to see Theodore. After the petition was filed, Haley emailed Tyson in November 2020 to inform him that she had met all of the requirements of stage one of the parenting plan and was requesting parenting time with Theodore. Haley had started counseling, provided Tyson with a negative hair follicle test at his request, provided her address for a well-check, and had agreed to cover the cost of a third-party to supervise her visit. When Tyson denied Haley’s November request for parenting time, Haley testified that she filed a contempt action against Tyson and Tyson testified that Haley began calling him every 2 weeks to ask for time with Theodore. In January 2021, Haley resumed paying her monthly child support obligation consistently. To constitute abandonment, it must appear that there has been, by the parents, a giving up or total desertion of the minor child. In re Adoption of Micah H., supra. The question of abandonment is largely one of intent to be determined in each case from all the facts and circumstances. In re Adoption of David C., 280 Neb. 719, 790 N.W.2d 205 (2010). Further, adoption statutes will be construed strictly in favor of the rights of the natural parents in controversies involving termination of the relation of the parent and child. Id. Based on the record before us, Haley has not given up or totally deserted Theodore. Although Haley’s efforts to have contact with Theodore have been sporadic and limited, and her actual contact nominal, the evidence demonstrates her desire and intent to reestablish a parent-child relationship. Therefore, the evidence is not clear and convincing that Haley abandoned Theodore. CONCLUSION We conclude that the trial court did not err in finding that Haley had not abandoned Theodore and, therefore, did not err in dismissing Brittany’s petition for adoption. Accordingly, the decision of the county court is affirmed. AFFIRMED.


A review order, filed on July 26, 2017, found returning joint custody to Jessica was contrary to J.K.1 and J.K.2's welfare, and continuation of <mask> with Claude was in the girls' best interests. The review order noted that Claude had complied with the case plan in that he had maintained the girls in his home, seen to their needs, and was cooperating with DHS.


Here, the change in circumstances was that Robin's bad acts were happening in the presence of the child, where they were presumably hidden before the divorce. To her detriment, the judge believed the testimony that Robin had men in the house overnight at least once while the children were present; that marijuana was found in Robin's house by Lynzi; that Robin spoke disparagingly of Lathaire in the children's presence; that Robin was drunk and smoked in front of the asthmatic child; and that while the parties were able to work out the schedule most of the time to give each other one-half of Krysten's time, they were in disagreement now. The judge apparently was persuaded by Lathaire's explanations for not paying child support when he was frustrated, and for his arrest in the children's presence. We must defer to the credibility calls made by the trial judge. Moreover, joint custody should only stand where the parties are very agreeable. Given the standard of review, we affirm the change from joint custody of Krysten to Lathaire having full custody. Id. at 166, 189 S.W.3d at 480 (internal citation omitted) (emphasis added). Phillip *291contends that this court should award him <mask> of L.P.


A custodial parent’s conduct may warrant a change of custody if it reaches “the level of deliberately frustrating, denying or interfering with” the parental rights of the noncustodial parent so as to raise doubts about the custodial parent’s fitness (see Matter of Lawrence C. v Anthea P., 79 AD3d 577, 579 [1st Dept 2010]). However, even egregious conduct in this regard must be viewed within the context of the child’s best interests (see Matter of Lew v Sobel, 46 AD3d 893, 895 [2d Dept 2007] [“While one parent’s alienation of a child from the other parent is an act inconsistent with the best interests of the child, here, the children’s bond to the alienating parent is so strong that a change of custody would be harmful to the children without extraordinary efforts by both parents and extensive therapeutic, psychological intervention” (citation omitted)]; Matter of Charpentier v Rossman, 264 AD2d 393 [2d Dept 1999] [father properly awarded <mask>, notwithstanding his interference with relationship between mother and child, based on strong preference for father expressed by 17-year-old child]). Although we agree with the trial court that the father should have been more restrained in the comments he made about the mother in the presence of Pascal and Scarlet, his conduct in this case does not rise to the level of deliberately frustrating, denying or interfering with the parental rights of the mother so as to raise doubts about his custodial fitness.


2. After the divorce, the parties interacted seamlessly and frequently regarding the children and the children's needs. 3. Dr. Schreckhise married in July of 2014. In August of 2014, Dr. Schreckhise began implementing a series of rules about how the parties would communicate, including limited communications in person and preferably only when spouses were available; requiring communication by email unless it was an emergency or time-sensitive, with spouses copied on the communication; and limiting interaction at the children's events to a "hi" or a nod. 4. In the summer of 2015, Dr. Schreckhise expanded the rules to add that Dr. Parry was not to talk to him at work,[1 ] was not to come to his house, was not to walk on the street in front of his house on North Willow Avenue or his wife's house on Washington Street,[2 ] and that they were to have separate parent-teacher conferences for each child. 5. Dr. Schreckhise testified that on the advice of his marriage counselor, he requested Dr. Parry not be present for the children's medical appointments if they fell during his visitation. 6. Dr. Schreckhise refused to inform Dr. Parry about the minor children's overnight childcare providers when requested by Dr. Parry. 7. In July of 2016, Dr. Schreckhise and his wife, Suzannah Schreckhise, became concerned about Dr. Schreckhise's twenty-three-year-old step-son, David Garrison. *785Mrs. Schreckhise filed an emergency petition for appointment of temporary and permanent guardianship of the person and estate of David. P. Garrison. The affidavit of David Garrison's father, included with Ms. Schreckhise's Petition, noted that David Garrison "since turning 18, has had multiple offenses evidencing a violent tendency including: destruction of property, violence toward family members, and violence toward past girlfriends.... [David has] engaged in reckless and dangerous activities." 8. Dr. Schreckhise allowed David Garrison to baby-sit his then ten-year-old children overnight in a hotel room in the spring of 2015. 9. Dr. Schreckhise did not communicate to Dr. Parry that his wife was seeking guardianship of David Garrison, though David Garrison was going to be in and out of Dr. Schreckhise's home with the parties' minor children present. 10. From September 2016 through December 2016, incidents with David Garrison occurred that resulted in Dr. Schreckhise seeking an order of protection and hiring off-duty police officers to provide security outside his house for a few days. 11. Dr. Schreckhise did not communicate to Dr. Parry about the need for the off-duty police officers or these incidents with David Garrison, except for one incident that occurred on December 25, 2016.[3 ] 12. Other than the Christmas day episode, Dr. Schreckhise's testimony was, "I didn't think I needed to tell [Dr. Parry] about David ... I was handling it." 13. Parents in a joint custodial arrangement have the obligation to communicate with each other about everything that affects the children. The parents' ability to cooperate in making shared decisions affecting the children is crucial and failure to cooperate in doing so constitutes a material change in circumstances. 14. August of 2014 clearly marked a significant shift in the way the parties communicated with each other. 15. This significant shift in the way the parties communicate, based on Dr. Schreckhise's rules, is clearly a material change in circumstances in the joint custodial arrangement, as the parties now are unable to effectively communicate about their children. 16. The joint custody arrangement is no longer in the minor children's best interest. 17. Dr. Schreckhise in an effort to assert his and his wife's autonomy has put up barriers for communication between Dr. Parry and himself. Dr. Schreckhise has followed the advice of his marital counselor to the detriment of his children by putting his new wife and their marriage ahead of the needs of the children. The rules set in place by Dr. Schreckhise are manipulative, controlling, and wholly inappropriate and are not in the minor children's best interest. 18. Dr. Parry has consistently advocated for a shared burden and blessing of taking care of the children and kept a free flow of information between herself and Dr. Schreckhise about the children. Dr. Parry encourages and fosters an open relationship between the children and Dr. Schreckhise and shares all information with him. Dr. Parry's efforts *786and communication with Dr. Schreckhise have been child focused. 19. Therefore, it is in the best interest of the children that <mask> be awarded to Dr. Parry, subject to visitation in Dr. Schreckhise. 20. Visitation shall continue under the schedule established in the original decree: Monday and Tuesdays with Dr. Parry, Wednesday and Thursday with Dr. Schreckhise, and alternating weekends. With regard to holidays, in the absence of any agreement otherwise, the parties shall follow the Washington County Suggested Visitation Schedule[.] Schreckhise has appealed the circuit court's order.4


During the period of July 15, 1985 to April 21, 1988, the children spent approximately one half of their time with each party. The parties did not modify the separation agreement dated December 28, 1979, to reflect this change in custody, nor any change in child support. Defendant petitioned the Supreme Court, County of Nassau, for custody of the children. Said proceeding culminated in a decision by the Honorable Howard E. Levitt dated December 15, 1985, awarding joint custody of the children to the parties and substantially dividing physical custody equally between the parties. Furthermore, Justice Levitt’s order provided as follows: "Each party shall solely bear their respective costs for the upkeep and maintenance of the children while in their custody, and all extra expenses for help, camp and education shall be borne equally.” By an order dated January 12, 1987, the Appellate Division, Second Department, reversed said order restoring <mask> to the wife as provided in the aforesaid separation agreement and divorce decree.


*476The IAS Court did not abuse its discretion in determining that the best interests of the children would be served by granting <mask> to plaintiff (see, Alan G. v Joan G., 104 AD2d 147, 152). Defendant’s contention that the court did not adequately consider evidence that plaintiff administers corporal punishment to her children is without merit. It is not disputed that the children had indicated to counselors that plaintiff "hits” them on occasion. But there was no indication that the physical contact rose to a level beyond that of proportionate disciplinary measures.


In Harris , a majority of the California Supreme Court decided which of these two statutes, section 3103 or 3104, applied in circumstances where a court had granted extensive visitation rights to paternal grandparents over the objection of the child's mother, who had obtained a judgment of dissolution and an order granting her <mask> years earlier. ( Harris , supra , 34 Cal.4th at pp. 214, 220, 17 Cal.Rptr.3d 842, 96 P.3d 141.) It concluded section 3104 governed because the Legislature intended section 3103 to govern grandparent visitation only until entry of judgment dissolving the marriage and awarding custody of the child. ( Id. at p. 222, 17 Cal.Rptr.3d 842, 96 P.3d 141.) The court reasoned "both statutes contain a rebuttable presumption against grandparent visitation if the parents agree that such visitation should be denied. But only section 3104 also applies a rebuttable presumption against grandparent visitation if the parent granted sole custody of the child objects. We conclude that the Legislature did not include a similar provision in section 3103 because it would not be needed during marriage dissolution proceedings before a judgment awarding custody had been entered. There would be no need to include such a provision in section 3103 if, as we conclude, a request for grandparent visitation is governed by section 3104 once a judgment has been entered dissolving the marriage and awarding sole custody of the child to one parent." ( Id. at p. 223, 17 Cal.Rptr.3d 842, 96 P.3d 141.) The court went on to uphold the constitutionality of that section under the federal and California Constitutions. ( Id . at pp. 223-230, 17 Cal.Rptr.3d 842, 96 P.3d 141.)


Morton I. Willen, J. The plaintiff mother in this proceeding, M.A.B., applied to the court in June 1985, seeking to modify a judgment of divorce entered June 14, 1984. She wishes the court to permit her to move to Florida with her three children. The defendant father, R.B., cross-moved for a modification of the same divorce judgment, seeking to have <mask> of their 12-year-old son, B., awarded to him. He does not seek custody of the two younger children and opposes their removal to Florida. The matters were consolidated and a trial was held starting in March 1986, and concluded in May. The matter was reopened at the mother’s behest in September based on subsequent facts and finally completed in October.


After Mr. Kern went into the house, Mr. Crumb said he had desired to give Emma Crumb a little remembrance, and to give a half sister something, to which Mrs. Crumb said that his relatives had never done anything for him and had never treated him decently, and he was under no obligations to give them anything, and so far as the other persons were concerned, she would carry out his wishes if she lived the longest; whereupon Mr. Crumb said: “ I have *485had Mr. Kern draw the wills as we agreed, embodying this arrangement.” At this point of time Mr. Kern said to Mr. Crumb he had drawn the wills in pursuance of what he had told him, and that they were ready for execution, whereupon Mr. Crumb signed the will, declaring it to be his last will and testament, and requesting Mr. and Mrs. Kern to sign the same as witnesses, which they immediately did in his presence; that the said will was not read by Mr. Crumb before its execution, nor was it read to him by anyone, nor had he seen it before this time; that from the time the will was drawn Mr. Kern had the <mask> of it, and he had not disclosed its contents to any one; that, immediately after the will was executed, Mr. Kern and Mr. Crumb left the house together and went down town, leaving the will upon the table, Mrs. Crumb’s will being also executed at the same time, and left in the same place.


Between January, 1978 and Donna M. Avery’s death on June 15,1980, the child, Vincent Joseph Lester, continued *822in the physical custody of his father. However, the issue of custody appears to have been far from finally settled. In approximately September, 1979, a custody proceeding was commenced in Family Court, by the decedent, but dismissed, apparently on the basis that the issue of permanent custody was still pending in Supreme Court. Between that time and her death, the decedent sought advice from, at least, two attorneys concerning the issue of custody of her son. Testimony by the petitioner, Alan Avery, to the effect that his wife made almost daily wishes for <mask>, and testimony by Vincent Catlin to the effect that his daughter was attempting to obtain full custody of her son, was uncontroverted.


There is insufficient evidence to address those branches of the plaintiff’s motion requesting <mask> and a declaration that her alleged partner, R.R., is the biological father of A.K. and R.K. The court’s paramount concern as it relates to custody is to determine, under the totality of circumstances, what is in the best interests of the children, and what will best promote their welfare and happiness (Eschbach v Eschbach, 56 NY2d 167 [1982]). There are no absolutes in making that determination; however, the decision must be based upon sound and substantial evidence (Matter of Louis M. v Administration for *877Children’s Servs., 69 AD3d 633 [2d Dept 2010]). Here, the plaintiff has failed to proffer even a scintilla of objective, scientific evidence in admissible form to establish that the children were conceived via in vitro fertilization using R.R.’s biological material. Furthermore, R.R. is not a party to this action, nor is there a showing that the plaintiff served notice of the instant motion upon R.R.


The petition stated that the biological father was unknown, and both parties *417swore to that fact in separate depositions. A warning order attorney was appointed to attempt service on the unknown and unidentified father. In her response, Kali stated that she was waiving her rights to seek separate representation by counsel, as well as her superior right to <mask> of S.J.C. On March 10, 2015, the family court entered an order granting joint custody of S.J.C. to Kali and Jessica.


In many cases, a child who seeks SIJ status will be involved in proceedings in the juvenile court (for foster home placement) or the probate court (for the appointment of a legal guardian). However, where the child has reunited with one parent in the United States, it is more likely the child will be the subject of a custody proceeding in the family court. In this case, Bianka initiated a parentage action under the Uniform Parentage Act (Fam.Code, § 7600 et seq. ) naming her mother as the respondent. Although Bianka's mother did not file a response to the petition, it appears maternity is uncontested. Bianka also filed a pretrial request for *854order asking the court to place her in the sole legal and physical custody of her mother and to make the additional findings necessary to allow her to petition for SIJ status, namely that she cannot reunify with her father because he abandoned her and it is not in her best interest to return to Honduras. The court declined to make the requested findings primarily because it concluded Bianka's request for an award of <mask> to her mother in an action under the UPA necessarily implicated paternity and parental rights (if any), which in turn made Jorge an indispensible party to the parentage action.


On an earlier appeal (187 AD2d 50, appeal dismissed 81 NY2d 1006, lv denied 82 NY2d 654, rearg denied 82 NY2d 803), we affirmed the trial court’s award of permanent and <mask> of the child to respondent along with the sole and exclusive power with respect to him and ordered petitioner’s visitation to be supervised. Thereafter, petitioner father brought on five orders to show cause to, inter alia, hold respondent mother in contempt for purportedly intentionally violating the terms of the custody/visitation order and to again seek the appointment of a law guardian/forensie psyehi*15atrist for the child, who is apparently still suffering the effects of the protracted custody battle. In view of petitioner’s failure to establish that respondent’s conduct was willful and contumacious, the court properly denied petitioner’s request to hold respondent in contempt. Moreover, the court did not err in ruling without holding an evidentiary hearing since no factual dispute existed which could not be resolved on the papers alone (see, Matter of Benny v Benny, 199 AD2d 384, 388).


By a notice pursuant to CPLR article 31 dated January 31,1984, the defendant seeks to take the oral depositions of the plaintiff and her current husband with respect to evidence material and necessary in the prosecution of his application for <mask>. The notice states that “this is NOT A FINANCIAL EXAMINATION. IT IS NECESSARY FOR THE PROSECUTION OF THIS ACTION.”


After the parties’ divorce in 1990, petitioner was awarded <mask> of their daughter, Aslinn (who is now six years old), with respondent having regular visitation. Beginning in 1992, the parties filed petitions and cross petitions seeking modifications of the prior order: petitioner sought changes in the visitation schedule, initially to facilitate his planned relocation out of State, and later because Aslinn had become enrolled in an area Head Start program, and respondent applied for sole custody and then for joint custody during the pendency of her custody petition. Family Court found that the parties’ circumstances had not changed sufficiently to warrant a change in custody, but that more extensive visitation would be in Aslinn’s best interest. The court also directed petitioner to consult with respondent on matters involving Aslinn’s health care, education, discipline, moral development and travel. Petitioner appeals, contending that the consultation requirement is tantamount to an award of joint legal custody, and that such an arrangement is unworkable given the parties’ continued animosity toward each other. He also argues that the newly ordered visitation schedule improperly deprives him of "quality time” with his daughter and, consequently, must be overturned. We are unconvinced.


In any event, we need not decide whether joinder of an alleged parent is required in every case in which <mask> is requested because the court's joinder order was appropriate in this case under the permissive joinder provision of California Rules of Court, rule 5.24. (Cal. Rules of Court, rule 5.24(e)(2).) That section of the rule states in pertinent part: "The court may order that a person be joined as a party to the proceeding if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue." (Ibid. ) For at least two reasons, the court did not abuse its discretion by requiring Jorge's joinder in this case.


Nevertheless, there are circumstances in which joinder may be appropriate, as in the present case in which Bianka requests an order giving her mother sole legal and physical custody. "The requirements of due process of law are met in a child custody proceeding when, in a court having subject matter jurisdiction over the dispute, the out-of-state parent is given notice and an opportunity to be heard." (In reMarriage of Torres (1998) 62 Cal.App.4th 1367, 1378, 73 Cal.Rptr.2d 344.) While joinder of an alleged parent who lives outside California may not be required in every case in which <mask> is requested, we are hard pressed to think of a circumstance in which it would not be prudent and consistent with principles of due process.


The balance shown by the above statement exceeds, by fifty cents, the balance found by the referee. The appellant excepted to being charged with any of the items added to the balance of $17,092.83 by the referee, but in the brief presented in his behalf the only item challenged is interest, $11,101.65, though the appellant also insists that he is not liable for principal or interest, because the fund was lost by the failure of his co-trustee, Hall. The appellant seeks to avoid liability for any part of the balance found due, upon the ground that he intrusted his co-trustee, Hall, a man in good credit, with the management of the trust estate. It appears that Hall was a banker at the city of Elmira at the time of the assignment, and continued in that business until July 22,1881, when he was found to be insolvent, and made a general assignment for the benefit of creditors. Hall managed the assigned estate substantially to the exclusion of Gillett, and he, Hall, testified that he used the trust funds in his private business. He also testified “I am only an individual banker. As such banker I kept an account with Hall and Gillett, as assignees, credited these moneys collected; was with Gillet’s knowledge.” Hall also testified that a large portion of the moneys was at first deposited to the credit of the assignees in the Chemung Canal *301Bank and in the Second National Bank, but it was shortly drawn out by the joint checks of the assignees and deposited with the defendant Hall. By signing these checks, the appellant, Gillet, voluntarily placed this money in the <mask> of his co-assignee. He knew that Hall was a banker, and must have known from the course of business, that it was being used by Hall individually; but if he did not know this, he did know that he was placing the money within the power of his co-assignee to so use it. This was gross negligence. The appellant was not examined in his own behalf before the referee, and made no attempt to show that he acted on good faith, or diligently. Hnder the well settled rules of law relating to the liability of trustees for their conduct, both defendants were properly held liable for the loss of this sum. (Duffy v. Duncan, 32 Barb., 587; affirmed, 35 N. Y., 187; Berwick v. Halsey, 4 Redf., 18; 3 Will. Ex. [6th Am. ed], 1827.) The rule measuring the liability of a trustee for the devastavit of a co trustee in a continuing trust, is not quite applicable to this case. In continuing trusts, it may not, under some circumstances, be actionable negligence for a trustee to intrust his co-trustee with the securities of the estate, even though by such action loss accrues. The trust in question was an active one, and these assignees knew that it was their duty to speedily convert the estate into money, care for it with vigilance and promptly distribute it among the creditors; and neither truetee can escape liability by intrusting the sole management of the estate to his co-trustee. No excuse is shown why this money was not'promptly distributed, or for drawing it from banks and intrusting it to Hall. This appellant took a sufficiently active interest in the management of this estate to suppose himself to be entitled to a compensation of $3,000, which he paid himself September 18, 1878, less than six months after the date of the assignment. These assignees were allowed by the referee the same commissions which the most vigilant trustees are allowed by law. ($6,076.28, live per cent on the amount collected.) They might well have been charged with compound interest, but were only charged with simple interest. The defendants might well have been charged with the costs of this litigation, but instead of that they were charged against the fund. These defendants have been most liberally treated by the court below; unless it should be *302held that such trusts are to be administered for the benefit of the assignees, instead of for the benefit of the creditors.


Since the doctrine of res ipsa loquitur permits the trier of facts to infer negligence from the mere happening of accident where defendant is in exclusive possession and control of the instrumentality which caused the accident, it is within the power of this court to find negligence on the part of the corporate defendant in the exercise of its care and handling of the baggage which led directly to the injuries inflicted upon the plaintiff by the individual defendant’s dog (Yandrasitz v. Teddy’s House of Sea Food, 286 App. Div. 146; Curley v. Ruppert, 272 App. *332Div. 997). The New York case in point is Thomas v. Hudson Riv. Day Line (176 N. Y. S. 2). In Thomas the dog was delivered into the <mask> of the carrier, Hudson River Day Lines. While in the carrier’s custody and control the dog escaped, jumped overboard and was lost. The count held the loss of the dog raised a presumption of negligence on the part of the carrier.


It is unclear if the arrangement would be considered voluntary under Maryland law, where in at least one case, a relative's voluntary assumption of responsibility over a minor child resulted in a legal obligation, even though there was no court order awarding custody. (See, e.g., Owens v. Prince George's County Dep't. of Soc. Servs. (2008) 182 Md.App. 31, 957 A.2d 191, 203-204.) In Owens, an aunt took responsibility for her niece when the mother was unwilling and the father was unable to do so, and the administrative law judge concluded that by her actions, she assumed a legal responsibility to her niece such that her subsequent unwillingness to provide shelter was a basis for a child neglect charge. (Ibid . ) We decline to draw a conclusion on this point because the Department focuses its appeal on the nature of Grandmother's relationship to J.H. after the court awarded her <mask>.


After the Warren Family Court granted Heidi's motion to continue the June 14, 2016 hearing on the primary residential parent, a dispute arose regarding the children's summer visitation with Roger. Roger had purchased tickets for a flight on June 20, 2016, for the children to visit him in Kentucky. Heidi, however, did not want to put the children on the plane until July 3 so that one of the children could celebrate his birthday with his friends in Oregon. A number of motions were subsequently filed,5 resulting in an order granting Roger emergency <mask> of the children on June 23, 2016. That same day, Heidi moved to alter, amend, or vacate the Warren Family Court's order, pursuant to CR 59.05, given that the emergency prompting the order of sole custody had ended. Roger returned to Kentucky with the children on June 24, 2016. On July 13, 2016, the Warren Family Court restored joint custody of the children, pending other motions and further court orders.


Cardona, P. J., Mikoll, Mercure and Weiss, JJ., concur. Ordered that the order is modified, on the law and the facts, without costs, by reversing so much thereof as denied petitioner’s request for <mask> of the parties’ children and denied her request to relocate with the children to another *849State; petitioner’s request for sole custody of the children granted and matter remitted to the Family Court of Fulton County for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.


To summarize Mr. B.’s relationship with his children: he was never married to Antoinette M.; he has court orders of filiation *275for four of the five children; he had <mask> of the four older children from 1996-1997, and thereafter received court orders for visitation; from 1998 to June 2003 he was incarcerated; he has never lived with Shaqueal, does not have an order of paternity for him, and has had very limited contact with him (including three visits while incarcerated at Rikers Island in 1999); he filed new petitions for custody of all five children in 2002, while on “work release” (Dockets No. V-20135/02, V-20139-42/02) which were dismissed without prejudice when he was reincarcerated later that year; and he opposes termination of his rights and adoption. The agency relies on Domestic Relations Law § 111 (1) (d) to assert that Mr. B. does not meet the statutory criteria for an unwed father whose consent to adoption is required, and specifically “objects to and disputes the characterization of Notice Father’s relationship with any of the children as ‘very significant.’ ” Mr. B. argues that, based on the undisputed factual history summarized above, he has a substantial relationship with his children which is entitled to protection, and that application of Domestic Relations Law § 111 (1) (d) to him would deprive him of his constitutional rights.


Plaintiff, on the other hand, testified to the friction between the parties, the threats, harassment and intimidation she has *644suffered, the father’s unwillingness to share in the care of the children while he lived at home, and his exposure of the children to his romance with her erstwhile friend. Plaintiff sees the joint custody arrangement, in which she acquiesced with reluctance, as failing to meet the needs of the children and she asks the court to award her <mask> with liberal visitation to defendant.


The trial court ruled that JW would attend school with his brothers in Berryville. Over Doby's objection, the trial court ruled that an attorney ad litem would be appointed, and an order was filed appointing Ryan Blue to represent the boys. On September 28, 2017, Shannon amended her complaint for divorce, alleging eighteen months' separation. Doby amended his counterclaim, alleging adultery and general indignities as grounds and asking that the joint-custody order continue or that he be awarded <mask>.


The biological parents also argue that the family court erred because the facts and circumstances exhibit a reasonable expectation of improvement. The Mother argues that since she was released from prison, she completed intensive outpatient treatment, parenting classes and counseling, paid child support, and gained employment, all without a court order, she shows signs of improvement. The Father argues that: (1) the family court never ordered child support; (2) the court awarded him joint custody in October 2015; (3) he maintained his visitation schedule until the court awarded L.B. and B.B. <mask> in June 2016; and (4) he has another adult daughter with whom he is significantly involved.


Although we find no fault with Supreme Court’s grant of primary physical custody to defendant, plaintiff argues persuasively that it would have been more appropriate to award the parties joint legal custody. Joint custody may be ordered when both parties are fit and loving parents who desire to share in the upbringing of their children, providing they have demonstrated a willingness and ability to put their differences aside and behave in. a "mature civilized fashion” for that purpose (Braiman v Braiman, 44 NY2d 584, 590; see, Matter of Clark v Dunn, 195 AD2d 811, 813). Here, while each party sought <mask>, they both also indicated that joint custody would be an acceptable "second choice”; thus, they are apparently willing to work together for the benefit of their children. And while the record indicates that the parties argued and bickered incessantly during their marriage, there is no evidence they they are "so embattled and embittered” that they will be unable to cooperate to the extent necessary to provide their children with proper care (Matter of Monahan v Monahan, 178 AD2d 829, 830; see, Matter of Venable v Venable, 122 AD2d 374).


Awarding <mask> of C.W. to his father in these circumstances was an abuse of discretion. After reunification has failed, a permanent plan has been selected and the focus of proceedings has shifted from reunifying parent with child in favor of providing the child with a permanent and stable home, it thwarts the entire point of our dependency scheme for a juvenile court to surrender a child back to such a parent, by relinquishing its jurisdiction and awarding that parent full and exclusive legal custody of the child. "It is a clear abuse of discretion to make findings that a minor is at risk in [a parent's] home, yet return the minor home and terminate supervision and dependency." ( In re I.G. (2014) 226 Cal.App.4th 380, 387, 171 Cal.Rptr.3d 867.) Doing so abrogates the court's statutory duty to protect every minor within its jurisdiction, wherever placed. (See id. at pp. 387-388, 171 Cal.Rptr.3d 867 [reversing order granting mother custody and terminating jurisdiction]; §§ 300, 300.2; cf. Los Angeles County Dept. of Children & Family Services v. Superior Court (2006) 145 Cal.App.4th 692, 699, 51 Cal.Rptr.3d 816 [abuse of discretion to permit adjudicated child sex abuser to return to family home subject to monitored visitation after finding substantial danger still exists]; see also, e.g., In re Elizabeth G. (1988) 205 Cal.App.3d 1327, 1333, 253 Cal.Rptr. 161 [juvenile court properly declined at section 366.3 review hearing to return child to parents who presented no evidence demonstrating any change in their "inability to recognize and admit the problems that required [their daughter's] removal from their home"].) Here, by sustaining the jurisdictional allegations, the juvenile court found early on in the proceedings that C.W. was at substantial risk in his father's care. Thereafter, no evidence was presented Rusty no longer posed a danger and there were warning signs of significant problems related to Rusty's unfitness as a parent. By awarding permanent custody to Rusty in these circumstances (if that was the intent), the juvenile court just ignored the risks it previously found existed.


Felice K. Shea, J. In this action for divorce, the court must determine whether or not to order joint custody of the parties’ infant daughters, ages five and seven. The plaintiff mother seeks <mask> of *643the children, with liberal visitation to the defendant father. Defendant urges that custody be awarded jointly and that the children divide their time equally between the two homes. In the alternative, the father requests that he be the custodial parent.


On November 9, 1954, two agreements, one of separation and another embodying a consent to any future adoption, were signed by the respondent. The separation agreement grants <mask> and control to the wife, in consideration of her waiving support for herself and the child. By its terms, the husband “ shall not have any right of access to nor any right to communicate with or visit with the child at any place at any time hereafter ’ ’. The separation agreement was mentioned and approved by the court in a decree of divorce granted in the State of Georgia on January 27, 1955.