Matter of Blagg v. Downey, 132 A.D.3d 1078 (N.Y. App. Div. 2015). · Go Syfert
Matter of Blagg v. Downey, 132 A.D.3d 1078 (N.Y. App. Div. 2015). Cases Citing This Book View Copy Cite
28 citation events (28 in the last 25 years) across 1 distinct court.
Strongest positive: Matter of Jillian PP. v. Christopher C. (nyappdiv, 2026-05-07)
Treatment trajectory · 2015 → 2026 · click a year to view as-of
2015 2020 2026
Top citers, strongest first. 24 distinct citers. How cited ↗
discussed Cited as authority (rule) Matter of Jillian PP. v. Christopher C. (2×)
N.Y. App. Div. · 2026 · confidence medium
In the absence of such language or intent, we reject the father's mootness argument ( see Matter of Daniel C. v Joanne C. , 182 AD3d 711, 712-713 [3d Dept 2020]; Matter of Christopher Y. v Sheila Z. , 173 AD3d 1396, 1397 [3d Dept 2019]; Matter of Blagg v Downey , 132 AD3d 1078, 1078-1079 [3d Dept 2015]).
discussed Cited as authority (rule) Matter of Andrea II. v. Joseph HH.
N.Y. App. Div. · 2022 · confidence medium
In view of our ultimate conclusion that the record evidence supports the award of primary physical custody to the father, we see no reason to remit the matter for consideration of the new allegation ( see Matter of Blagg v Downey , 132 AD3d 1078, 1079 [2015]; compare Matter of Michael B. , 80 NY2d at 318 ).
discussed Cited as authority (rule) Matter of Fowler v. Rothman
N.Y. App. Div. · 2021 · confidence medium
Consequently, we conclude that the mother's appeal, which challenges only the court's custody determination, is not moot ( see Matter of Nicole B. v Franklin A. , 185 AD3d 1166, 1166 [3d Dept 2020]; Matter of William O. v Wanda A. , 151 AD3d 1189, 1190 [3d Dept 2017], lv denied 30 NY3d 902 [2017]; Matter of Blagg v Downey , 132 AD3d 1078, 1079 [3d Dept 2015]).
discussed Cited as authority (rule) Matter of Nicole B. v. Franklin A.
N.Y. App. Div. · 2020 · confidence medium
Accordingly, the mother's appeal is not moot ( see Matter of Daniel C. v Joanne C. , 182 AD3d 711 , 712-713 [2020]; Matter of Blagg v Downey , 132 AD3d 1078, 1079 [2015]; compare Matter of Attorney for the Child v Cole , 140 AD3d 1335, 1336 [2016]; Matter of Mosier v Cole , 129 AD3d 1346, 1347-1348 [2015]).
discussed Cited as authority (rule) Matter of Daniel C. v. Joanne C.
N.Y. App. Div. · 2020 · confidence medium
Inasmuch as the 2019 order did not supersede the appealed-from order, only adjusting the parenting schedule to ease transportation difficulties, the parties' cross appeals are not moot, with one exception [FN3] ( see Matter of Christopher Y. v Sheila Z. , 173 AD3d at 1397; Matter of Blagg v Downey , 132 AD3d 1078, 1079 [2015]). [FN4] Addressing the merits of the parties' contentions, we affirm.
discussed Cited as authority (rule) Matter of Christopher Y. v. Sheila Z.
N.Y. App. Div. · 2019 · confidence medium
Inasmuch as the April 2019 order did not supersede the appealed-from order and continued its award of sole custody to the mother, we find that the father's appeal is not moot to the extent that it addresses that award and the procedure that led to it ( see Matter of Blagg v Downey , 132 AD3d 1078, 1079 [2015]).
discussed Cited as authority (rule) Matter of Cooper v. Williams
N.Y. App. Div. · 2018 · confidence medium
Here, the parties' conceded inability to communicate or engage in cooperative decision-making with regard to medical and health care matters involving the children constitutes a change in circumstances for purposes of satisfying the mother's initial burden on her modification petition ( see Matter of Andrea C. v David B. , 146 AD3d 1104, 1106 [2017]; Matter of Blagg v Downey , 132 AD3d 1078, 1079 [2015]).
discussed Cited as authority (rule) Matter of Montoya v. Davis
N.Y. App. Div. · 2017 · confidence medium
Both the mother and the Attorney for the Child appeal. 4 The parties do not dispute that there has been a change in circumstances since entry of the prior order of custody and, as such, the primary issue before us is whether the child’s best interests were served by Family Court’s order (see Matter of Nathanael G. v Cezniea I., 151 AD3d 1226, 1227 [2017]; Matter of Walter TT. v Chemung County Dept. of Social Servs., 132 AD3d 1170, 1170-1171 [2015]; Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015]).
discussed Cited as authority (rule) Matter of William O. v. Wanda A.
N.Y. App. Div. · 2017 · confidence medium
Inasmuch as this order did not modify the prior custody arrangement and does not include language indicating that it superceded any prior orders, the portion of the June 2014 order that awarded the grandparents legal and physical custody of the children remains appealable (see Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015]; cf. Hughes v Gallup-Hughes, 90 AD3d 1087, 1088 [2011]; compare Matter of Dalmida v Livermore, 134 AD3d 1306, 1307 [2015]).
discussed Cited as authority (rule) Matter of William O. v. John A.
N.Y. App. Div. · 2017 · confidence medium
For the reasons more fully discussed in our decision resolving the father’s appeal from the June 2014 order of custody and visitation (Matter of William O. v Wanda A., supra), the portion of the father’s appeal relating to a change in legal custody has not, as the grandparents and the attorney for the children contend, been rendered moot by the entry of a September 2016 order suspending the father’s visitation (see Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015]; cf. Hughes v Gallup-Hughes, 90 AD3d 1087, 1088 [2011]; compare Matter of Dalmida v Livermore, 134 AD3d 1306, 1306-1307 [2…
discussed Cited as authority (rule) Matter of Nathanael G. v. Cezniea I.
N.Y. App. Div. · 2017 · confidence medium
Accordingly, under these circumstances, we cannot conclude that the temporary orders have rendered this appeal moot and we are, thus, constrained to reach the merits of the father’s arguments (see Hughes v Gallup-Hughes, 90 AD3d 1087, 1088 [2011]; compare Matter of Mosier v Cole, 129 AD3d 1346, 1347 [2015]). 2 The parties do not dispute that there has been a change in circumstances since the prior order of custody and, as such, the only issue before us is whether the children’s best interests were served by Family Court’s order granting the mother sole legal custody of both children and …
discussed Cited as authority (rule) Smith v. McMiller
N.Y. App. Div. · 2017 · confidence medium
An inquiry into the best interests of the child “involves the examination of several factors, including the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child and foster a relationship with the other parent” (Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015] [internal quotation marks, brackets and citations omitted]; see Matter of Robert Q. v Miranda Q., 138 AD3d 1174, 1176 [2016]).
discussed Cited as authority (rule) Smith v. McMiller
N.Y. App. Div. · 2017 · confidence medium
An inquiry into the best interests of the child “involves the examination of several factors, including the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child and foster a relationship with the other parent” (Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015] [internal quotation marks, brackets and citations omitted]; see Matter of Robert Q. v Miranda Q., 138 AD3d 1174, 1176 [2016]).
discussed Cited as authority (rule) Matter of Andrea C. v. David B.
N.Y. App. Div. · 2017 · confidence medium
Family Court, drawing upon its “superior vantage point of observing the demeanor of the witnesses who testified before it” (Matter of Ryan v Lewis, 135 AD3d 1135, 1137 [2016] [internal quotation marks and citation omitted]), largely credited the testimony of the mother — finding that the mother was “more aware of and involved with” the child’s teachers and service providers, had made “thoughtful, rationale ] decisions” with respect to the child’s welfare and, on balance, was capable of providing “a greater continuity of care” for the child than the father (see Matter of B…
discussed Cited as authority (rule) Joseph Q. v. Jessica R.
N.Y. App. Div. · 2016 · confidence medium
In making a best interests determination, Family Court was required to consider, among other factors, “ ‘the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child [ ] and foster a relationship with the other parent’ ” (Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015], quoting Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]; see Matter of Shokralla v Banks, 130 AD3d at 1264 ).
discussed Cited as authority (rule) Joseph Q. v. Jessica R.
N.Y. App. Div. · 2016 · confidence medium
In making a best interests determination, Family Court was required to consider, among other factors, “ ‘the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child [ ] and foster a relationship with the other parent’ ” (Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015], quoting Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]; see Matter of Shokralla v Banks, 130 AD3d at 1264 ).
discussed Cited as authority (rule) Matter of Rockhill v. Kunzman
N.Y. App. Div. · 2016 · confidence medium
An inquiry into the best interests of the child was accordingly triggered, which “involves the examination of several factors, including ‘the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child [ ] and foster a relationship with the other parent’ ” (Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015], quoting Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]; accord Matter of Barrows v Sherwood, 138 AD3d 1195, 1196 [2016]).
discussed Cited as authority (rule) Matter of Barrows v. Sherwood
N.Y. App. Div. · 2016 · confidence medium
“A best interests analysis involves the examination of several factors, including ‘the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child [ ] and foster a relationship with the other parent’ ” (Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015], quoting Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]).
discussed Cited as authority (rule) Matter of McKenna v. McKenna
N.Y. App. Div. · 2016 · confidence medium
Without knowing the specific relief sought in the father’s petition and in the absence of the transcript of the proceeding before Family Court, we cannot conclude that the father relinquished his right to appeal from that portion of the prior order establishing his child support obligation (see Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015]; Hughes v Gallup-Hughes, 90 AD3d 1087, 1088 [2011]; Matter of Siler v Wright, 64 AD3d 926, 927-928 [2009]; Matter of Chittick v Farver, 279 AD2d 673, 675 [2001]).
discussed Cited "see" Matter of Brockel v. Martin
N.Y. App. Div. · 2017 · signal: see · confidence high
In making a best interests determination, a court must consider, among other factors, “ ‘the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child [ ] and foster a relationship with the other parent’ ” (Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014]; see Matter of Blagg v Downey, 132 AD3d 1078, 1079-1080 [2015]).
discussed Cited "see" Matter of Kylene FF. v. Thomas EE.
N.Y. App. Div. · 2016 · signal: see · confidence high
Turning to the best interests of the children, factors to be taken into account include “the parents’ ability to maintain the stability of the children, their respective home environments, past performance, relative fitness, ability to provide for the overall well-being of the children and willingness to foster a positive relationship with the other parent” (Matter of LaFountain v Gabay, 69 AD3d 994, 995 [2010]; see Matter of Blagg v Downey, 132 AD3d 1078, 1079-1080 [2015 ]., Matter of Parchinsky v Parchinsky, 114 AD3d 1040, 1041-1042 [2014]).
discussed Cited "see, e.g." Matter of Jordan W. v. Amanda X.
N.Y. App. Div. · 2024 · signal: compare · confidence medium
The attorney for the child has provided this Court with the result of those petitions, namely, an April 2023 order in which Family Court, in relevant part, modified the custodial arrangement to award sole legal and physical custody to the mother and a reduced, but gradually increasing, amount of parenting time to the father. [FN1] The April 2023 order was denominated as the "second superseding order of custody and visitation" and expressly provided that it "supersede[d] all prior orders of custody and visitation." Notwithstanding the father's arguments to the contrary, this appeal from the Jul…
discussed Cited "see, e.g." Matter of Chase v. Chase
N.Y. App. Div. · 2017 · signal: compare · confidence medium
Notably, the court specified “that all prior [o]rders are hereby modified *997 and superseded.” While the issue of custody remained unchanged between the August 2015 order and the May 2017 order and, despite our inability to determine whether the mother relinquished her right to pursue this appeal due to the absence of the transcript of the 2017 proceeding before Family Court (see Matter of Cameron ZZ. v Ashton B., 148 AD3d 1234, 1234 [2017]; Matter of McKenna v McKenna, 137 AD3d 1464, 1465 [2016]), because Family Court’s order, which was entered on the consent of the parties, noted that…
discussed Cited "see, e.g." Matter of Dalmida v. Livermore
N.Y. App. Div. · 2015 · signal: compare · confidence medium
Inasmuch as the present appeal was taken from an *1307 earlier order and an award of joint legal custody that has since been superseded, it must be dismissed as moot (see Matter of Mosier v Cole, 129 AD3d 1346, 1347-1348 [2015]; Matter of Giovanni K., 62 AD3d 1242, 1242 [2009], lv denied 12 NY3d 715 [2009]; compare Matter of Blagg v Downey, 132 AD3d 1078, 1079 [2015]).
Retrieving the full opinion text from the archive…
In the Matter of Erich Blagg, Appellant,
v.
Mary Downey, Respondent. Mitch Kessler, Attorney for the Child, Appellant. (And Nine Other Related Proceedings.)
516691.
Appellate Division of the Supreme Court of the State of New York.
Oct 22, 2015.
132 A.D.3d 1078
Devine, Garry, Lynch, Rose.
Cited by 24 opinions  |  Published
Rose, J.

Appeals from an order, a modified order and an amended order of the Supreme Court (Clark, J.), entered March 22, 2013 and March 28, 2013 in Schenectady County, which, among other things, granted respondent’s application, in a proceeding pursuant to Family Ct Act article 6, to modify a prior order of custody and visitation.

Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorced parents of a daughter (born in 2002). In September 2010, the parties consented to a custody order granting them joint legal custody of the child, with primary physical custody to the mother and a liberal schedule of visitation to the father. In July 2011, the father filed a modification petition seeking sole custody of the child and initiating a volley of nine additional petitions and cross peti[*1079] tions by both parties seeking enforcement and/or modification of the September 2010 order. Following a fact-finding hearing on all 10 petitions, together with a Lincoln hearing, Supreme Court issued a decision and order in March 2013, later modified and amended that same month, modifying the September 2010 order by awarding the mother sole custody of the child and granting expanded visitation to the father. Both the attorney for the child and the father now appeal.

Initially, the mother contends that the appeals have been rendered moot. She informs us that, during the pendency of these appeals, the father, who had apparently struggled with drug addiction in the past, resumed the abuse of heroin and became homeless, which prompted her to file a new custody and visitation modification petition. In December 2014, Family Court (Burke, J.) granted the mother’s petition and issued an order modifying the March 2013 order to, among other things, restrict the father to supervised visits with the child. [1] Inasmuch as the December 2014 order simply continued the March 2013 order’s award of sole custody to the mother, did not modify the prior custody arrangement and included no language providing that it superceded all prior orders, we find that the portion of the prior order awarding sole custody to the mother remains appealable (cf. Hughes v Gallup-Hughes, 90 AD3d 1087, 1088 [2011]; Matter of Siler v Wright, 64 AD3d 926, 927-928 [2009]). Further, in view of our ultimate conclusion that the record evidence supports the award of sole custody to the mother, we see no reason to remit the matter for consideration of the new allegations (compare Matter of Michael B., 80 NY2d 299, 318 [1992]).

Turning to the merits, Supreme Court’s finding of a sufficient change in circumstances is not in dispute. Thus, the only issue is whether the award of sole custody to the mother is in the child’s best interests. A best interests analysis involves the examination of several factors, including “the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child[ ] and foster a relationship with the other parent” (Matter of [*1080] Parchinsky v Parchinsky, 114 AD3d 1040, 1041 [2014] [internal quotation marks and citations omitted]; see Matter of LaFountain v Gabay, 69 AD3d 994, 995 [2010]). We will not disturb the trial court’s determination in this regard, unless it lacks a sound and substantial basis in the record (see Matter of Joshua UU. v Martha VV., 118 AD3d 1051, 1052 [2014]; Matter of Claflin v Giamporcaro, 75 AD3d 778, 780 [2010], lv denied 15 NY3d 710 [2010]).

In a detailed and well-reasoned decision, Supreme Court concluded that, while both parents love and care for the child, her best interests would be served by awarding sole custody to the mother because she was more attuned to the true issues facing the child, while the father seemed to believe that the child’s only problems stemmed from the mother’s parenting style. The record makes clear that the child has a history of emotional and behavioral issues and has been diagnosed with, among other things, attention deficit hyperactivity disorder, intermittent explosive disorder and mild depression. According to testimony given by mental health professionals who have treated the child, the mother is “incredibly supportive and cooperative,” responsive to the child’s needs, and has diligently tried to implement a number of recommended parenting techniques to correct some of the child’s most difficult behavioral issues. The father, on the other hand, has frequently disagreed with the advice of health care professionals regarding the child, and his disruptive conduct during the child’s appointments caused a pediatrician to discontinue treating her and resulted in the issuance of a court order barring him from attending her therapy sessions.

Although the attorney for the child advocated for an award of sole custody to the father, we agree with Supreme Court that the father’s overly indulgent and permissive parenting style appeared to be designed to earn the child’s favor and undermine the rules and expectations that the mother attempted to instill in the child. [2] Further, an award of sole custody to the father would have required this fifth-grade student to transfer to her fourth elementary school, a move that — as the record discloses — would be detrimental to the child. Accordingly, we decline to disturb Supreme Court’s determination that the child’s best interests are served by awarding sole custody to the mother, as it finds sound and substantial[*1081] support in the record (see Matter of Cornick v Floreno, 130 AD3d 1170, 1172 [2015]; Matter of Shearer v Spisak, 90 AD3d 1346, 1348-1349 [2011]; Matter of Meier v Meier, 79 AD3d 1295, 1296 [2010]).

Garry, J.P., Lynch and Devine, JJ., concur.

Ordered that the orders are affirmed, without costs.

1

. We take judicial notice of the December 2014 order of Family Court (Burke, J.) (see Matter of Mosier v Cole, 129 AD3d 1346, 1347 n 2 [2015]; Matter of Hannah U. [Patti U.], 110 AD3d 1258, 1260 n 5 [2013]). Further, although they are outside the record, we also find it appropriate, under these circumstances, to take judicial notice of the new facts and allegations associated with the December 2014 order, inasmuch as not doing so “would exalt the procedural rule — important though it is — -to a point of absurdity, and reflect no credit on the judicial process” (Matter of Michael B., 80 NY2d 299, 318 [1992] [internal quotation marks and citation omitted]).

2

. While “a child’s wishes, which must be expressed and advocated by his or her attorney in a suitable manner, are properly taken into account in determining the child’s best interests, [they] are not dispositive” (Matter of Colona v Colona, 125 AD3d 1123, 1126 [2015] [citation omitted]).