| Matter of Siler v Wright |
| 2009 NY Slip Op 05711 [64 AD3d 926] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Antonio Siler, Respondent, v Machelle Wright,Appellant. |
—[*1] Daniel S. Ross, Middleburgh, for respondent. James M. Bryant, Law Guardian, Schoharie.
Peters, J.P. Appeal from an order of the Family Court of Schoharie County (Bartlett III, J.),entered June 11, 2008, which granted petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, for modification of a prior order of custody.
The parties are the parents of two children (born in 1995 and 1997). Pursuant to a 2003stipulated order of custody, respondent (hereinafter the mother) was granted physical custodywith visitation to petitioner (hereinafter the father). Slight amendments to the terms of visitationcontained in that order were made in 2005. Thereafter, the father commenced a modificationpetition seeking sole custody of the children based upon the mother's frequent moves, her chaoticpersonal life and the children's poor school attendance and grades. By a decision and orderentered in April 2007, Family Court dismissed the father's petition, but noted that it was "a veryclose case," and admonished the mother that she must not subject the children to any furtherdislocation and must make diligent efforts to maintain stability in the children's lives and ensurethat their school attendance and grades improve.
Approximately four months later, the father commenced this proceeding to modify custodyon the grounds that the mother had relocated yet again, she was no longer employed and thechildren's grades and attendance at school continued to suffer. Family Court granted the [*2]father temporary physical custody of the children and, soonthereafter, permitted the children to be enrolled in the school district where the father resided.Following fact-finding and Lincoln hearings, Family Court found a change incircumstances warranting a modification of custody and, by order entered June 11, 2008, grantedsole custody to the father and visitation to the mother on alternating weekends, with schoolvacations split between the parties. The mother now appeals from that order.
Initially, we cannot conclude that this appeal has been rendered moot by a subsequent orderof Family Court. While this appeal was pending, the parties appeared before the courtconcerning a petition to modify visitation brought by the father and a violation petition filed bythe mother. At that time, the parties agreed to withdraw their respective petitions and stipulatedto an order, entered September 10, 2008, which made minor adjustments to the visitationschedule but otherwise left unchanged the custody provision. This order was engendered solelyas a result of petitions dealing with visitation issues and, in the absence of the transcript of theproceeding before Family Court, does not establish that the mother relinquished her right topursue this custody appeal (see Matter of Chittick v Farver, 279 AD2d 673, 675 [2001];Matter of Rush v Rush, 201 AD2d 836, 837 [1994]).[FN*]
Turning to the merits, it is by now well settled that a parent seeking to modify an existingcustody order bears the burden of proving that there has been a sufficient change incircumstances since the entry of that order warranting a modification thereof in the children'sbest interests (see Matter of Gorham vGorham, 56 AD3d 985, 986 [2008]; Matter of Grant v Grant, 47 AD3d 1027, 1028 [2008]). Indetermining whether a modification will serve the best interests of the children, factors to beconsidered include maintaining stability in the children's lives, the quality of the respective homeenvironments, the length of time the present custody arrangement has been in place and eachparent's past performance, relative fitness and ability to provide for and guide the children'sintellectual and emotional development (see Matter of Zwack v Kosier, 61 AD3d 1020, 1022 [2009]; Matter of Valenti v Valenti, 57 AD3d1131, 1133 [2008], lv denied 12 NY3d 703 [2009]). Due to Family Court's ability toevaluate the testimony and assess the credibility of witnesses, its factual findings are accordedgreat deference and will not be disturbed unless they lack a sound and substantial basis in therecord (see Matter of Gravelding vLoper, 42 AD3d 740, 742 [2007]; Matter of Bessette v Pelton, 29 AD3d 1085, 1087 [2006]).
Since the 2003 custody order, the mother moved on several occasions, causing the childrento be uprooted from both their homes and their schools. During this time, the children's gradesfloundered and the mother failed to ensure that they regularly attended school. Indeed, despiteFamily Court's admonitions to the mother in its April 2007 decision, she relocated twicethereafter without informing the father, and the children's attendance and grades at schoolcontinued to suffer while in her care. She also introduced yet another paramour into thechildren's life, and left her full-time employment to pursue a career in nursing which, whilecommendable, jeopardized both the children's health insurance coverage and her present abilityto support herself and the children. We agree that the mother's inability to ensure that thechildren's educational needs were being met, frequent change of residences and otherwise [*3]unstable lifestyle constitute a substantial change in circumstanceswarranting a revisitation of the issue of custody (see Matter of Tavernia v Bouvia, 12 AD3d 960, 961 [2004];Matter of Hudson v Hudson, 279 AD2d 659, 660-661 [2001]).
We also find that Family Court's determination to award sole custody to the father has asound and substantial basis in the record. The father offered consistency and stability in thechildren's lives that the mother was unable to provide, maintaining steady employment andproviding an appropriate home with his wife and her three children. Since August 2007 whenthey began residing with the father, the children have flourished both academically and socially.Both the parties and school personnel testified to the children's improved attendance andacademic performance in their new school, and even the mother acknowledged that theirtransition into this school district has been so successful that they should remain there. Theyactively participate in organized sports and extracurricular activities and have made many friendsin their new school. While at times expressing aversion to living with the father, the recordreveals that this stems from the level of rigidity imposed by him on the children's lives, such asassigning chores and ensuring that homework was done at the table. Although the mother has avery close relationship with the children and her role as the children's primary custodian fornearly all of their lives is an important consideration in maintaining stability (seeFriederwitzer v Friederwitzer, 55 NY2d 89, 94 [1982]; Matter of Hudson v Hudson,279 AD2d at 660), the record amply supports Family Court's determination that the father couldprovide greater stability here and that awarding him custody would be in the best interests of thechildren (see Matter of Tavernia v Bouvia, 12 AD3d at 962; Matter of Moreau vSirles, 268 AD2d 811, 813 [2000], lv denied 95 NY2d 752 [2000]). Moreover,although by no means determinative, this conclusion is in accord with the position advanced bythe Law Guardian both at the hearing and on appeal (see Matter of Diffin v Towne, 47 AD3d 988, 992 [2008], lvdenied 10 NY3d 710 [2008]; Matter of Armstrong v Crout, 33 AD3d 1079, 1082 [2006]).
Spain, Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Indeed, the mother representsthat she specifically reserved her right to continue her appeal from the June 2008 order.Regrettably, such reservation was not incorporated into the resulting order.