| Matter of Burola v Meek |
| 2009 NY Slip Op 05723 [64 AD3d 962] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Cynthia H. Burola, Appellant, v Tami F. Meek,Respondent. (And Another Related Proceeding.) |
—[*1] Bixby, Crable & Stiglmeier, Albany (Carol R. Stiglmeier of counsel), for respondent. James B. Lesperance Jr., Law Guardian, Ballston Spa.
Kavanagh, J. Appeal from an order of the Family Court of Albany County (Walsh, J.),entered October 15, 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.
Respondent is the adoptive parent of petitioner's daughter, born in 1997 during the parties'relationship. After their relationship ended, the parties entered into a comprehensive agreementin September 2006 detailing the custodial and visitation arrangements for the child that wassubsequently incorporated in an order issued by Family Court. Pursuant to the order, the partiesagreed to share joint custody of the child, with petitioner having physical custody during theschool year and respondent having custody of the child every Thursday through Friday and onalternate weekends. During the summer recess, the child would spend alternate weeks in eachparent's care.
Six months after entering into this agreement, petitioner sought a court order that wouldsignificantly reduce respondent's right to visit with the child and filed a family offense petition[*2]against respondent, as well as a petition seeking sole custodyof the child. In turn, respondent filed a petition seeking legal custody of the child, as well as anincrease in the amount of time the child is in her custody. She also claimed that petitioner hadviolated the terms of the existing order by substantially interfering with her right to visitation.After conducting a hearing, Family Court dismissed petitioner's family offensepetition.[FN1]It then continued with hearings on the other pending applications and, near the end of thatprocess, petitioner moved to amend her petition to include evidence of things that had occurredsince these proceedings had been commenced. Petitioner also sought an order requiring allparties, including the child, to undergo psychological evaluations. Family Court denied bothmotions and, upon conclusion of the hearing, dismissed petitioner's petition and partially grantedrespondent's petition to modify custody by directing that each parent have custody on alternatingweeks.[FN2]Petitioner now appeals from Family Court's order.
Initially, we note that Family Court did not abuse its discretion by denying petitioner'smotion to amend her modification petition so that she could introduce testimony from thedaughter's therapist to the effect that the child's emotional health had deteriorated since thepetition had been filed. It is for Family Court to decide, in the sound exercise of its discretion, ifit is appropriate to allow a party to amend a pleading and that decision must focus on a numberof factors, including the prejudice to the opposing party that will result if the application isgranted (see Matter of Lamar RashardJustin Trevon B., 32 AD3d 754, 755 [2006]; Matter of Tina T. v Steven U., 243AD2d 863, 863-864 [1997], lv denied 91 NY2d 805 [1998]; see also Matter of Harry P. v CindyW., 48 AD3d 1100, 1100 [2008]). While leave to amend a pleading may be granted "atany time" (CPLR 3025 [b]; see Family Ct Act § 165 [a]), we note that petitioner'sapplication was not made until the hearing was near completion and some two months afterpetitioner had rested and finished presenting her proof in support of her application. Petitioner'sfailure to include a proposed amendment with the motion simply served to reinforce FamilyCourt's conclusion that the timing of the application—almost five months after thehearings began—did not provide respondent with adequate notice so that respondent couldaddress the new allegations that were contained in it. The prejudice to respondent, given thetiming of this application, was self-evident, and Family Court's denial of petitioner's motion toamend the petition under the circumstances represented a sound exercise of its discretion (see Matter of Mack v Grizoffi, 13AD3d 912, 913 [2004]).
Nor did Family Court err by denying petitioner's request that all involved, including thechild, be required to partake in psychological examinations. Petitioner argued that theseexaminations were necessary to properly assess respondent's claim that petitioner haddeliberately engaged in a course of conduct that was designed to alienate the child fromrespondent. Again, this is a decision that rests within the exercise of Family Court's discretion(see Family Ct Act § 251 [a]; Matter of Kubista v Kubista, 11 AD3d 743, 745 [2004]; Matterof Paul C. v Tracy C., 209 AD2d 955, 955 [1994]). Here, the court concluded—afterhearing extensive testimony on these and other issues from numerous witnesses, includingpetitioner, [*3]respondent and the child's therapist—that itpossessed sufficient information to render an informed decision on this issue and did not need tosubject the parties and, particularly, the child, to a psychological evaluation. Its decision,especially in light of the fact that it had conducted two Lincoln hearings that focused, inpart, on this issue, represented a sound exercise of its discretion and enjoyed ample support inthe record (see Matter of Johnson vWilliams, 59 AD3d 445, 445 [2009]).
Petitioner also challenges Family Court's conclusion that she deliberately engaged in acourse of conduct designed to alienate the child from respondent and that such conductconstituted a change in circumstance that warranted a complete review of the existing custodialarrangement (see Matter of Zwack vKosier, 61 AD3d 1020, 1021 [2009]; Posporelis v Posporelis, 41 AD3d 986, 989 [2007]; Matter of Adams v Franklin, 9 AD3d544, 545 [2004]). Examples abound of petitioner, either personally or through surrogates,engaging in such conduct and establish that she is either unable or unwilling to do what isneeded and necessary to facilitate a parental relationship between respondent and their child,even though such a relationship is clearly in the child's best interests. For example, petitioner,despite her obvious love for the child, systematically engages in conduct that increases, ratherthan diminishes, the trauma and anxiety that the child routinely experiences whenever she leavespetitioner and is placed in respondent's care. She refuses to use respondent's name whenever sherefers to the child and has encouraged the child to abandon respondent's surname as well. Sheroutinely fails to keep respondent informed of the child's ongoing activities and has not kept heradvised concerning important details involving the child's medical care. While much of thisevidence has been the subject of intense dispute during this lengthy hearing, it is for FamilyCourt, in the first instance, to determine the credibility of such evidence and its conclusions willnot be disturbed unless they clearly constitute an abuse of the court's discretion and are withoutany support in the record (see Matter ofSmith v Smith, 61 AD3d 1275, 1277 [2009]; Posporelis v Posporelis, 41 AD3dat 991; Matter of Musgrove vBloom, 19 AD3d 819, 820 [2005]). This record, despite petitioner's contentions to thecontrary, is replete with evidence supporting the court's conclusion that petitioner sought toalienate the child from respondent and that such a finding warrants a review of the existingcustodial arrangement.
Family Court, concluding that such a change in the custodial arrangement was indeednecessary to ensure the child's best interests, considered how long the existing custodialarrangement had been in place, the child's needs and wishes, each parent's past performance andrelative fitness and each parent's respective ability to provide for the child's intellectual andemotional development (see Eschbach v Eschbach, 56 NY2d 167, 172 [1982]; Matter of Miller v Murray, 61 AD3d1295, 1296 [2009]; Matter ofSloand v Sloand, 30 AD3d 784, 785 [2006]; Kaczor v Kaczor, 12 AD3d 956, 958 [2004]). Again, taking intoaccount the court's "opportunity to evaluate the credibility of the parties and witnesses, weaccord great deference to that court's custodial determination unless it lacks a sound andsubstantial basis in the record" (Matterof Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008];see Miller v Murray, 61 AD3d at 1296-1297; Matter of Anson v Anson, 20 AD3d 603, 604 [2005], lvdenied 5 NY3d 711 [2005]; Kaczor v Kaczor, 12 AD3d at 958).
Here, Family Court concluded that respondent was able to provide a stable and suitablehome environment for the child that would promote a healthy relationship between the child andher entire family. It noted that respondent allowed the child, when in her care, to maintain dailycontact with petitioner, as well as other members of petitioner's extended family. Respondentalso had photographs of petitioner and her family placed throughout her home so as to ease the[*4]adjustment that the child had to make when she had leftpetitioner's home and was placed in respondent's care. Petitioner, as previously noted and asFamily Court found, has not reciprocated in this effort and seems determined not to allowrespondent to enjoy a normal relationship with the child. In that regard, petitioner will not allowrespondent in her home and has promoted a belief in the child that respondent is not her mother.Petitioner has communicated with the child regarding ongoing court proceedings and appears tohave suggested to the child that if respondent prevails, such a determination will adversely affecther. This evidence, as well as the other proof presented at the hearing, supports Family Court'sdetermination that the child would only enjoy a wholesome relationship with both of herparents—something that was clearly in her best interests—if her time withrespondent was significantly increased.
Moreover, contrary to petitioner's claim, Family Court did take into account the fact that thechild did not want to continue overnight visitation with respondent. After twice meeting with thechild, Family Court was well aware of the child's wishes and clearly took them into account inreaching its decision. However, as noted by the court, a child's wishes are but one factor and arenot determinative regarding decisions relating to custody and visitation (see Matter of Smithv Smith, 61 AD3d at 1277-1278). This is especially true where the evidence received at thehearing supports the court's finding that the child has been manipulated by one of the parties andthe child's views regarding her relationship with the other party are the product of thatmanipulation (see Matter of Whitley vLeonard, 5 AD3d 825, 827 [2004]). In short, Family Court's custodial determinationwas supported by a sound and substantial basis in the record and should be affirmed (see Matter of Martin v Martin, 61AD3d 1297, 1299 [2009]). Petitioner's remaining claims have been reviewed and found tobe lacking in merit.
Spain, J.P., Kane, Malone Jr. and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Petitioner has not appealed fromthe dismissal of the family offense petition in which she alleged that respondent had utteredthreats against her and the child.
Footnote 2: The record does not contain anyfinding by Family Court on respondent's petition claiming that petitioner had violated theexisting visitation order.