| Matter of Kowatch v Johnson |
| 2009 NY Slip Op 09577 [68 AD3d 1493] |
| December 24, 2009 |
| Appellate Division, Third Department |
| In the Matter of Dale Kowatch, Respondent, v JoanJohnson, Appellant. |
—[*1] Rosemarie Richards, Gilbertsville, for respondent. Michael Mendelson, Law Guardian, Delhi.
Stein, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredJanuary 15, 2009, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 6, for custody of the parties' children.
Pursuant to a modification order entered in May 2007 while petitioner (hereinafter thefather) was incarcerated, Family Court awarded sole custody of the parties' daughter (born in1999) and son (born in 2001) to respondent (hereinafter the mother) and granted the fatherweekend visitation upon his release from incarceration. After his release, the father married hislong-term girlfriend (hereinafter the stepmother), with whom he has a son. The father, thestepmother and their son all live together in Arkville, Delaware County. In April 2008, themother moved from the Town of Stamford, Delaware County to the Town of Catskill, GreeneCounty, taking the parties' children and two of her older children with her.
The father commenced this proceeding for modification of the May 2007 order, alleging thatthe mother had moved without his permission or the permission of Family Court and that shewas denigrating him and the stepmother in the presence of the children. In his petition, the fatherspecifically requested, among other things, a resumption of joint custody as existed prior to hisincarceration. After fact-finding and Lincoln hearings, Family Court determined thatjoint custody was inappropriate given the animosity between the parties and awarded custody ofthe [*2]children to the father, with visitation to the mother. Themother now appeals.
We affirm. Family Court correctly found, and the mother concedes, that there has been achange in circumstances since entry of the May 2007 order. After finding that there was achange in circumstances necessitating a modification of that order—including the father'srelease from incarceration, the mother's move from Delaware County to Greene County, thecontinued deterioration in the parties' relationship and various behavioral problems exhibited bythe children—Family Court then properly proceeded to a best interests analysis (seeMatter of Meyer v Lerche, 24 AD3d 976, 976-977 [2005]; see generally Matter of NikkiO. v William N., 64 AD3d 938, 939 [2009], lv dismissed 13 NY3d 825 [2009];Matter of Bronson v Bronson, 63 AD3d 1205, 1206 [2009]; Matter of Martin vMartin, 61 AD3d 1297, 1298 [2009]).
There is a sound and substantial basis in the record to support Family Court's determinationthat an award of joint custody would not be in the best interests of the children. It was evidentfrom the testimony that the father and mother had significant difficulty communicating with eachother and making joint decisions in matters relating to the children (see Matter of Cobane vCobane, 57 AD3d 1320, 1322 [2008], lv denied 12 NY3d 706 [2009]). The fathertestified that the mother was not accommodating with regard to his requests for occasionalchanges to the visitation schedule. The father also testified that the mother often prevented himfrom speaking with the children on the telephone and usually cut off any conversation that thefather attempted to initiate with her regarding the children. In response to the father's testimonythat he had expressed a desire to obtain counseling for the daughter, the mother testified that shehad considered counseling and believed the daughter's emotional difficulties to be caused by thefather.
Once Family Court determined that "joint custody was not feasible, it was incumbent uponFamily Court to determine a custodial arrangement based upon the best interests of the child[ren]despite the absence" of a petition definitively seeking sole custody (Matter of Scala vParker, 304 AD2d 858, 860 [2003]), since the mother was clearly on notice that both legaland residential custody were at issue[FN1](see Matter of Heintz v Heintz, 28 AD3d 1154, 1155 [2006]; see generally Matter ofAlbanese v Albanese, 44 AD3d 1117, 1119-1120 [2007]; compare Matter of Adams vBracci, 61 AD3d 1065, 1067 [2009], lv denied 12 NY3d 712 [2009] [no notice thatlegal custody at issue]). "In determining whether a modification will serve the best interests ofthe children, factors to be considered include maintaining stability in the children's lives, thequality of the respective home environments, the length of time the present custody arrangementhas been in place and each parent's past performance, relative fitness and ability to provide forand guide the children's intellectual and emotional development" (Matter of Siler vWright, 64 AD3d 926, 928 [2009] [citations omitted]).
Here, the stepmother testified that the daughter seemed upset and depressed, cried frequentlyand was reluctant to return to the mother's house after visitation with the father. The fathertestified that the daughter, perhaps mimicking her older sister, had told him that "she [had]missed her period and might be pregnant." He further testified that the son was havingdisciplinary problems at school and the stepmother testified that he was uncooperative and had[*3]poor hygiene. The evidence showed that the father madeconsistent and repeated efforts to maintain contact with the son's teachers in order to attempt toforestall his educational difficulties, whereas the mother admitted to cancelling severalparent-teacher conferences. Rather than seeking to address their son's concerns, the motherminimized his hyperactivity and inability to follow directions.
Family Court also heard testimony that the father had maintained the same residence forapproximately four years, that the children had friends in the father's neighborhood and cousinswho reside nearby and that the children did not know anyone in Catskill before the mothermoved there. The father has been in a stable relationship with his current wife for several years,while the mother has had relationships with various men. Although both parties have a history ofalcohol abuse, the mother admitted that she continued to drink several times a week, whereas thefather was attending Alcoholics Anonymous meetings and was, by all accounts, maintaining hissobriety. There was testimony that the children had reported abuse by two of the mother's olderchildren and that, after one of them struck the parties' daughter with sufficient force to leave ahand print on her back, that child was allowed back into the mother's home after 10 months infoster care. The father testified that the children reported that the mother hit them with a belt,while he relied on time-outs and restrictions of privileges for discipline. Considering the recordas a whole and according due deference to Family Court's findings and credibility determinations(see Matter of Bronson v Bronson, 63 AD3d at 1206), we find that there is a sound andsubstantial basis supporting Family Court's determination[FN2]and we, therefore, decline to disturb it.
Cardona, P.J., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: For example, the father testifiedat the fact-finding hearing that he wanted the children placed with him and the mother's attorneymade no objection to such testimony.
Footnote 2: Although not determinative, wealso note that the Law Guardian supported a change of custody to the father.