| Matter of Cool v Malone |
| 2009 NY Slip Op 07542 [66 AD3d 1171] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of David F. Cool, Jr., Respondent, v Patricia R.Malone, Respondent, and Jessica L. Jackson, Appellant. (And Other RelatedProceedings.) |
—[*1] Samantha H. Miller, Albany, for David F. Cool Jr., respondent. Christopher Hammond, Law Guardian, Cooperstown.
Malone Jr., J. Appeal from an order of the Family Court of Otsego County (Burns, J.),entered October 23, 2008, which, among other things, granted petitioner's application, inproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent Jessica L. Jackson (hereinafter the mother)are the parents of three daughters, Makayla (born in 1998), Jadha (born in 2000) and Madison(born in 2003). The mother and father had married in 1999, were separated in 2003 and divorcedin 2005. At the time of their separation, the mother had primary physical custody of the childrenand the father had weekend visitation. This arrangement was modified by an order entered onconsent in March 2008, following an incident in which the mother left the children unsupervisedfor two days while she attended a party, at which she drank alcohol and smoked [*2]crack cocaine. Pursuant to the consent order, the mother and fathershared joint legal custody, the father took primary physical custody of Jadha and Madison, andthe maternal grandmother—respondent Patricia R. Malone (hereinafter thegrandmother)—took primary physical custody of Makayla. The father commenced theseproceedings[FN1]seeking custody of Makayla after the parties engaged in numerous disputes regarding, amongother things, his visitation with the child. The mother then filed two petitions seeking custody ofthe children and two violation petitions, one of which she withdrew before the hearing. Thegrandmother then filed two petitions seeking joint custody of Makayla with the mother and twoviolation petitions. After a fact-finding hearing, Family Court awarded the father sole legalcustody of the children and dismissed all remaining petitions. The mother appeals and, as limitedby her brief, contests only the award of sole custody to the father.[FN2]
A petitioner seeking modification of an existing custody arrangement is required todemonstrate that a substantial change in circumstances occurred that necessitates a modificationto further the best interests of the child (see Matter of Passero v Giordano, 53 AD3d 802, 803 [2008]).Family Court's determinations in this regard will not be disturbed when they have a substantialbasis in the record (see Matter of Siler vWright, 64 AD3d 926, 928 [2009]). Although Family Court did not specificallyarticulate whether it found that the father had demonstrated a substantial change incircumstances, based upon our review of the record, we are satisfied that circumstances hadchanged such that it was necessary for the court to review the children's best interests (see Matter of Samuel v Samuel, 64AD3d 920, 921 [2009]; Matter ofBedard v Baker, 40 AD3d 1164, 1165 [2007]).
Initially, we find that the record contains ample evidence that increasing animosity betweenthe mother and father, among other reasons, rendered a joint legal custody situation unworkable(see Matter of Calandresa vCalandresa, 62 AD3d 1055, 1055-1056 [2009]). Further, there is a sound andsubstantial basis in the record for Family Court's determination that the children's best interestsare served by granting sole legal custody of them to the father. Among other reasons, the motherhas a history of substance abuse and mental health issues that caused the court to have "seriousconcerns regarding her mental stability and her fitness as a parent." In addition, the mother hadrelocated several times in the five years preceding the hearing, which caused Makayla to attendat least three different schools. As a result, Makayla experienced academic problems and haddifficulty socializing with her peers. Further, the mother's employment history revealed that shehad not been able to hold on to a job for more than three months at a time in the last year. Incontrast, the father maintained a stable home life with steady employment and was able to betterprovide for the children's physical, emotional and educational needs. Although Family Courtmay have improvidently precluded the mother from offering testimony that the father was inarrears in child support (see e.g. Matterof Grayson v Fenton, 13 AD3d 914, 916 [2004]), any such error was harmless given theother evidence supporting the custody determination. Thus, according deference to FamilyCourt's credibility determinations, we agree that it was in the children's best interests to awardsole legal custody to the father (seeMatter of Zwack v Kosier, 61 AD3d 1020, 1022 [2009], lv denied 13 NY3d 702[2009]).
Contrary to the mother's contention, Family Court did not abuse its discretion by consideringproof regarding events that occurred prior to the last custody order. Family Court was "vestedwith broad discretion" in determining the parameters for proof to be accepted at the hearing(Matter of Painter v Painter, 211 AD2d 993, 995 [1995]). Notably, while the father'stestimony on direct examination was limited to matters occurring after the entry of the last order,the mother's attorney began cross-examination of the father with questions regarding eventsgoing back as far as the date of the parties' marriage. In fairness to all, Family Court allowed thefather and the Law Guardian to also inquire about events that occurred during the same timeframe. Although one result of such decision was that proof unfavorable to the mother was putinto evidence, and was relied upon by Family Court, under these circumstances it cannot be saidthat the court abused its discretion (see e.g. Matter of McGovern v McGovern, 58 AD3d911, 913 [2009]; Matter of Painter v Painter, 211 AD2d at 995).
Finally, the mother's claims regarding certain testimony offered with respect to the father'sviolation petition need not be addressed inasmuch as Family Court dismissed that petition. Tothe extent not specifically addressed herein, the mother's remaining contentions have beenexamined and found to be unpersuasive.
Cardona, P.J., Peters, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: The father also filed a violationpetition and a family offense petition, which were dismissed by Family Court.
Footnote 2: None of the related proceedingsis at issue on this appeal.