| Matter of Bronson v Bronson |
| 2009 NY Slip Op 04313 [63 AD3d 1205] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Lee K. Bronson, Appellant, v Nuria Bronson,Respondent. (And Another Related Proceeding.) |
—[*1] Mitch Kessler, Cohoes, for respondent. Michael A. Korchak, Law Guardian, Binghamton.
Peters, J.P. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredFebruary 14, 2008, which, among other things, dismissed petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody andvisitation.
The parties are the parents of Jason (born in 1995), and respondent (hereinafter the mother)is the parent of Ezequiel (born in 1991). Following their separation, they were awarded jointcustody of the children, with primary physical custody to the mother and visitation on alternatingweekends to petitioner (hereinafter the father). In 2006, the prior custody order was modified by,as relevant here, awarding the father additional visitation with the children one weekday afterschool and at such further times as the parties may agree. Since then, the visitation schedule hasnot been strictly adhered to and Jason has visited with the father nearly every day after school.
In June 2007, the father commenced the instant modification proceeding seeking primaryphysical custody of Jason, alleging as a change of circumstances that the child desired to livewith him. The mother cross-petitioned, requesting termination of the father's visitation with[*2]Ezequiel and supervised visitation with Jason.[FN1]At the ensuing fact-finding hearing, the father agreed that sole custody of Ezequiel should begranted to the mother, and an order was entered accordingly. Following a Lincolnhearing with Jason and the conclusion of all testimony, Family Court dismissed the petitions andcontinued Jason's primary physical residence with the mother as well as alternating weekendvisitation for the father. Finding that a more structured order for additional visitation wasnecessary in light of the parties' history, the court also deleted the provision awarding the fatherone weekday of visitation after school and directed that any expansion of the specified schedulebe effectuated by a prior agreement of the parties. The father now appeals, and weaffirm.[FN2]
"An established custody arrangement will be altered 'only upon a showing of sufficientchange in circumstances reflecting a real need for change in order to insure the continued bestinterest of the child' " (Matter of Martinv Martin, 61 AD3d 1297, 1298 [2009], quoting Matter of Passero v Giordano, 53 AD3d 802, 803 [2008]; see Matter of Gorham v Gorham, 56AD3d 985, 986 [2008]). Upon appeal, Family Court's findings and credibilitydeterminations are accorded great deference and will not be disturbed unless they lack a soundand substantial basis in the record (seeMatter of Eck v Eck, 57 AD3d 1243, 1244 [2008]; Matter of Colwell v Parks, 44 AD3d 1134, 1135-1136 [2007]).
Here, the father's proof fell far short of demonstrating a change of circumstancesnecessitating a real need for a change in the established custody situation. The father assertedthat he should be awarded primary physical custody because Jason wanted to live with him, hewas increasingly involved in the child's day-to-day activities, such as assisting him withhomework, and because Jason's brother Ezequiel was engaging in inappropriate conduct in themother's home. Yet, there was no showing that Jason's welfare would be substantially enhancedby a change of custody or that the mother was unfit or less fit to continue as the custodial parent(see Matter of Meyer v Lerche, 24AD3d 976, 977 [2005]; Matter of Daniels v Guntert, 243 AD2d 891, 892 [1997]).Rather, Jason's performance in school actually declined under the father's tutelage. Moreover, themother's testimony, which Family Court found credible, established that she remained devotedand actively engaged in Jason's care and supported the father having a role in the child's life. Thefather, on the other hand, took advantage of the mother's willingness to allow additionalvisitation with Jason after school by consistently refusing to return the child at a mutuallyagreeable time. He also degraded the mother in the children's presence, encouraged them todisrespect the mother and disobey her rules, and left sexually explicit materials lying around hishome in plain view of the children. Although Family Court acknowledged Jason's expressedpreference to live with the father, it did not find this sufficient to change custody, andspecifically noted that the child's testimony appeared thoroughly "coached" and a byproduct ofthe influence of the father (see Matter ofGoodfriend v Devletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]; Matter ofReichenberger v Skalski, 24 [*3]AD3d 1101, 1102 [2005];Matter of Yetter v Jones, 272 AD2d 654, 656 [2000]). Based upon our review of therecord, we find a sound and substantial basis supporting Family Court's refusal to disturb thecustody arrangement.
Rose, Lahtinen, Kane and Kavanagh, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote 1: During the fact-finding hearing,the mother abandoned her request that the father be limited to supervised visitation with Jason.
Footnote 2: This is the third time that wehave addressed the matter of custody and visitation of these children (Matter of Bronson v Bronson, 37AD3d 1036 [2007]; Matter ofBronson v Bronson, 23 AD3d 932 [2005]).