| Matter of Diffin v Towne |
| 2008 NY Slip Op 00021 [47 AD3d 988] |
| January 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Richard S. Diffin, Jr., Respondent, v Tanya Towne,Formerly Known as Tanya Diffin, Appellant. (And Three Other RelatedProceedings.) |
—[*1] Robert M. Cohen, Ballston Lake, for respondent. Joseph Nalli, Law Guardian, Fort Plain.
Cardona, P.J. Appeal from an order of the Family Court of Montgomery County (Cortese, J.),entered August 11, 2006, which, among other things, granted petitioner's application, in fourproceedings pursuant to Family Ct Act articles 4 and 6, to modify a prior order of custody andvisitation.
The parties were married in 1993 and divorced in 2000. They have a son, Derrell, who wasborn in 1995. In 1997, they entered into a separation agreement which was later incorporated butnot merged into their judgment of divorce. They agreed to joint legal custody of their son withprimary physical custody to respondent (hereinafter the mother), residing in New York, andliberal visitation to petitioner (hereinafter the father), who resides in Virginia. This arrangementwas not challenged by either party until April 2004, when the father learned that the mother, whowas a member of the Army National Guard, was to be deployed to Iraq in May 2004 for a periodof at least one year. He then petitioned for custody of Derrell.
The mother sought to stay the proceedings pursuant to Military Law §§ 304 and307, [*2]which require a court, upon application of a person inmilitary service, to stay any proceeding in which the person is involved during the period of suchduty, unless the person's ability to participate in the lawsuit is unaffected by his or her militaryservice.[FN*]Family Court stayed the proceeding against the mother, but issued a temporary order of custodyplacing Derrell with his father. At the end of the school year, the child moved to Virginia toreside with his father, who lived with his wife and their daughter.
In October 2005, the mother petitioned Family Court for reinstatement of the originalcustody arrangement to be effective upon her return from duty in November 2005. The fatherthen petitioned to modify the temporary custody order to award primary physical custody to him,with substantial visitation to the mother.
A trial was held on all petitions, at the outset of which the parties stipulated to joint legalcustody of Derrell, leaving only the issue of physical custody to be resolved. Following testimonyfrom both parties and the father's wife, as well as a Lincoln hearing, Family Court,among other things, partially granted the father's custody petitions by awarding him primaryphysical custody of Derrell, with the mother having visitation every summer and winter recess,and other school recesses on a biennial basis. This appeal by the mother ensued.
A petitioner seeking to modify an existing custody order must demonstrate that since theorder was entered there has been a significant change in circumstances such that a change in thecustody arrangement is in the child's best interests (see Matter of Bedard v Baker, 40 AD3d 1164, 1165 [2007]; Matter of Kerwin v Kerwin, 39 AD3d950, 951 [2007]). Where a significant change in circumstances is established, among themyriad factors to be considered in assessing the child's best interests are " 'maintaining stabilityfor the child, the child's wishes, the home environment with each parent, each parent's pastperformance, relative fitness, ability to guide and provide for the child's overall well-being, andthe willingness of each parent to foster a relationship with the other parent' " (Kaczor v Kaczor, 12 AD3d 956,958 [2004], quoting Matter of Smith vMiller, 4 AD3d 697, 698 [2004]; see Matter of Eck v Eck, 33 AD3d 1082, 1083 [2006]). GivenFamily Court's opportunity to evaluate the credibility of the parties and witnesses, we accordgreat deference to that court's custodial determination unless it lacks a sound and substantialbasis in the record (see Matter of Bedard v Baker, 40 AD3d at 1165; Matter of Eck vEck, 33 AD3d at 1083; Matter ofKemp v Kemp, 19 AD3d 748, 750 [2005], lv denied 5 NY3d 707 [2005]).
We begin our discussion by noting that the parties are both excellent parents. Both havedemonstrated stable employment, adequate income, suitable homes, and an unwaveringcommitment to Derrell's well-being. Indeed, the parties enjoyed a long-standing shared custodyarrangement that nurtured Derrell's relationships with both parents, his half siblings, hisstepparents and other family members; an arrangement which, but for the mother's deployment in2004, might well remain in effect today.
However, the fact remains that the mother was deployed and, while we do not hold that [*3]her deployment in and of itself constitutes a significant change incircumstances, we must consider the consequences of her extended absence in determiningwhether such a change exists. Since shortly after Family Court issued the temporary custodyorder, Derrell has been living with his father and has adjusted well. Not only has he done wellacademically, he has actively participated in organized sports, made friends and developed astrong bond with his sister. Importantly, coupled with the substantial changes in Derrell's life isthe change in the mother's situation, in that she is now legally separated from her husband andshares custody of Derrell's brother with him, and has vacated the marital home where Derrelllived before moving in with his father. Without assigning blame to the mother for any of theseintervening events, we conclude that, taken together, they constitute a significant change incircumstances sufficient to trigger an analysis of Derrell's best interests.
Initially, in that regard, we note that Derrell has expressed no preference to reside with oneparent over the other. Additionally, we agree with Family Court's findings that both parents arefit and financially able to care for him, and we also recognize that each parent has been, andremains, willing to foster Derrell's relationship with the other. Both parents are concerned withhis academic success and have shown, overall, the ability and willingness to guide him in thatregard. Both also have adequate living arrangements.
Furthermore, Derrell has family ties in both New York and Virginia. The father is marriedand Derrell has a good relationship with his stepmother; the mother is legally separated, but hasan amicable relationship with her husband, with whom Derrell also has a good relationship. Inhis father's home, Derrell resides full time with his half sister. Derrell's grandparents, with whomhe is close, reside near the mother, as do other maternal relatives. He has also formedrelationships with his stepmother's relatives in Virginia. In sum, while the father's situation ismore settled than the mother's in that he owns his home and is in an apparently steady marriage,the record establishes that Derrell would be loved, supported and well cared for in the custody ofeither parent.
Notably, in determining best interests, we must also consider the advantage to a child ofmaintaining stability in his living situation (see Friederwitzer v Friederwitzer, 55 NY2d89, 94 [1982]; Dintruff v McGreevy, 34 NY2d 887, 888 [1974]; Matter of Gitchell vGitchell, 165 AD2d 890, 895 [1990]; Matter of Garcia v Doan, 132 AD2d 756, 757[1987], lv dismissed 70 NY2d 796 [1987]; Matter of Bishop v Lansley, 106AD2d 732, 733 [1984]). At present, Derrell is settled in his school and doing well, plays onseveral teams, has ongoing friendships with local children, and is comfortable and happy in hisfather's home. Although it is likely that Derrell would be equally well settled and happy had hecontinued living with his mother without interruption, and although the disruption caused by herdeployment was not her fault, this record does not demonstrate that Derrell's best interests wouldbe enhanced by ordering a change in his present physical custody. Under thecircumstances of this case, his interests are best served by the stability of an uninterruptedcustody arrangement.
Finally, although not determinative, we note that this conclusion accords with the LawGuardian's position both at the hearing and on this appeal (see Matter of Armstrong v Crout, 33 AD3d 1079, 1082 [2006];Matter of Kemp v Kemp, 19 AD3d at 751).
The parties' remaining contentions have been considered and found to be unpersuasive.
Peters, Spain, Carpinello and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The mother, who had remarriedand had another son with her husband, Jason Towne, argued that Towne should have physicalcustody of Derrell during her absence.