Matter of Volcy-Thelisma v. Nwabunor
Docket 2024-04256
Court of record · Indexed in NoticeRegistry archive · AI-enriched for research
- Filed
- Jurisdiction
- New York
- Court
- Appellate Division of the Supreme Court of the State of New York
- Type
- Opinion
- Case type
- Family
- Disposition
- Affirmed
- Citation
- 2026 NY Slip Op 02411
- Docket
- 2024-04256
Appeal from a Family Court order, after a hearing, granting mother's petition for sole legal and physical custody and denying father's petition for joint physical custody.
Summary
The Appellate Division, Second Department affirmed a Family Court order that, after a hearing, granted the mother's petition for sole legal and physical custody of the parties' child (born 2022) and denied the father's petition for joint physical custody. The appellate court found the Family Court's best-interest analysis — emphasizing the mother's greater ability to provide stability, overall well-being, and to foster the child's relationship with the other parent — had a sound and substantial basis in the record. The court also held the Family Court did not abuse its discretion by declining to appoint an attorney for the very young child.
Issues Decided
- Whether joint physical custody was appropriate given the parties' level of antagonism and ability to cooperate regarding the child.
- Whether awarding the mother sole legal and physical custody was supported by the best-interests analysis.
- Whether the Family Court erred in not appointing an attorney for the child.
Court's Reasoning
The court applied the child’s best-interests standard, considering stability, home environments, past parental performance, parental fitness, and ability to foster the parent-child relationship. The record showed the mother was more likely to provide stability, promote the child's well-being, and facilitate the child's relationship with the other parent, justifying sole custody. The Family Court's credibility findings and factual conclusions were given great weight and were not lacking a sound and substantial basis; the court also reasonably declined to appoint an attorney for the very young child where no demonstrable prejudice was shown.
Authorities Cited
- Eschbach v Eschbach56 NY2d 167
- Matter of Shields v Shields192 AD3d 691
- Matter of Quinones v Quinones139 AD3d 1072
Parties
- Respondent
- Magulina Volcy-Thelisma
- Appellant
- Ogorchukwuka Richard Nwabunor
- Judge
- Colleen D. Duffy, J.P.
- Judge
- Deborah A. Dowling
- Judge
- Janice A. Taylor
- Judge
- Laurence L. Love, JJ.
Key Dates
- child's birth year
- 2022-01-01
- mother filed custody petition
- 2022-10-01
- father filed custody petition
- 2022-12-01
- Family Court order date
- 2024-05-15
- Appellate Division decision date
- 2026-04-22
What You Should Do Next
- 1
Consult family-law attorney
Either party should consult counsel to understand how the custody order affects parenting time, decision-making, and future modification options under New York law.
- 2
Seek modification if circumstances change
If the father's circumstances or the child's needs materially change, the father may file an application in Family Court to request modification of custody or parenting time.
- 3
Comply with custody order
Both parents should comply with the Family Court order and any parenting-time schedule to avoid enforcement or contempt proceedings.
Frequently Asked Questions
- What did the court decide?
- The appellate court affirmed the Family Court's order giving the mother sole legal and physical custody and denying the father's request for joint physical custody.
- Why did the court favor the mother?
- The record showed the mother was more likely to provide stability, meet the child's overall needs, and foster the child's relationship with the other parent, which the court found served the child's best interests.
- Can the father get an attorney appointed for the child now?
- The appellate court held the Family Court did not abuse its discretion in declining to appoint an attorney given the child's young age and no shown prejudice; the father could raise such a request in further proceedings if circumstances change.
- Who is affected by this decision?
- The primary parties affected are the mother and father of the child; the decision determines custody and parental responsibility going forward.
The above suggestions and answers are AI-generated for informational purposes only. They may contain errors. NoticeRegistry assumes no responsibility for their accuracy. Consult a qualified attorney before relying on them.
Full Filing Text
Matter of Volcy-Thelisma v Nwabunor - 2026 NY Slip Op 02411 Matter of Volcy-Thelisma v Nwabunor 2026 NY Slip Op 02411 April 22, 2026 Appellate Division, Second Department In the Matter of Magulina Volcy-Thelisma, respondent, v Ogorchukwuka Richard Nwabunor, appellant. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on April 22, 2026 2024-04256, (Docket Nos. V-15337-22, V-17357-22) Colleen D. Duffy, J.P. Deborah A. Dowling Janice A. Taylor Laurence L. Love, JJ. Helma J. Hermans, Islip, NY, for appellant. Beth A. Rosenthal, Deer Park, NY, for respondent. DECISION & ORDER In a proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (Cheryl M. Helfer, Ct. Atty. Ref.), dated May 15, 2024. The order, insofar as appealed from, after a hearing, granted the mother's petition for sole legal and physical custody of the parties' child and denied the father's petition, in effect, for joint physical custody of the child. ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements. The mother and the father, who were never married, are the parents of one child, born in 2022. In October 2022, the mother filed a petition for sole legal and physical custody of the child. In December 2022, the father filed a petition, in effect, for joint physical custody of the child. In an order dated May 15, 2024, the Family Court, after a hearing, inter alia, granted the mother's petition and denied the father's petition. The father appeals. In any child custody dispute, the court's paramount concern is to determine, under the totality of the circumstances, what is in the best interests of the child ( see Eschbach v Eschbach , 56 NY2d 167, 171; Matter of Bell v Pierre , 239 AD3d 973, 974). In determining the child's best interests, the court must consider, among other things, (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires ( see Matter of Watson v Miller , 238 AD3d 883, 884; Matter of Mendoza v Riera , 232 AD3d 616, 618). The existence or absence of any one factor, however, is not determinative, since custody and parental access determinations must be made based on the totality of the circumstances ( see Matter of Beale v Patterson , 236 AD3d 900, 901-902; Matter of Haase v Jones , 230 AD3d 774, 777). A Family Court's credibility findings after a hearing on the issue of custody will be accorded great weight on appeal, and its determinations regarding custody and parental access will not be disturbed unless they lack a sound and substantial basis in the record ( see Matter of Steward v Okon , 238 AD3d 1055, 1057; Matter of Clarke v Clarke , 222 AD3d 751, 752). Joint custody of a child is inappropriate where the parties are antagonistic toward each other and have demonstrated an inability to cooperate on matters concerning the child ( see Matter of Sookchan v Sookchan , 234 AD3d 779, 781; Matter of Shields v Shields , 192 AD3d 691, 692). Here, contrary to the father's contention, the Family Court's conclusion that joint physical custody was not appropriate under the circumstances has a sound and substantial basis in the record ( see Matter of Shields v Shields , 192 AD3d at 692; Matter of Laura A.K. v Timothy M. , 204 AD2d 325, 326). Further, the court's determination awarding the mother sole legal and physical custody of the child is supported by a sound and substantial basis in the record. The evidence presented at the hearing demonstrated, among other things, that the mother was more likely to promote stability in the child's life and provide for his overall well-being, as well as more likely to foster the child's relationship with the noncustodial parent ( see Matter of Smisek v DeSantis , 239 AD3d 867, 870; Matter of Paisley v Moonsammy , 213 AD3d 941, 941-942). The father's contention that the Family Court should have appointed an attorney for the child is unpreserved for appellate review. In any event, under the circumstances of this case, including the young age of the child and the absence of demonstrable prejudice to the child's interests, the court providently exercised its discretion in not appointing an attorney for the child ( see Matter of Quinones v Quinones , 139 AD3d 1072, 1074). The father's remaining contentions are either unpreserved for appellate review or without merit. DUFFY, J.P., DOWLING, TAYLOR and LOVE, JJ., concur. ENTER: Darrell M. Joseph