| Matter of Terry I. v Barbara H. |
| 2010 NY Slip Op 00421 [69 AD3d 1146] |
| January 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Terry I., Respondent, v Barbara H.,Appellant. |
—[*1] Linda Berkowitz, Saratoga Springs, for respondent. Michael F. Getman, Law Guardian, Oneonta.
Stein, J. Appeal from an order of the Family Court of Fulton County (Desantis, J.), enteredOctober 10, 2008, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarriedparents of a son (born in 2000). Pursuant to the most recent custody order, the mother and fathershared joint legal custody and the mother had primary physical custody of the child, with thefather having specified parenting time. Between kindergarten and second grade, the child hashad emotional and behavioral problems at home and at school and the mother has moved himbetween three different schools in an apparent attempt to address those issues. Among otherthings, the child has exhibited signs of self-mutilation—including scratching of hisface—and expressed suicidal thoughts.
Upon arriving at the father's residence one morning in February 2008, the child reported thathis mother had slapped him across the face hard enough to cause preexisting, self-inflicted cutsto bleed. The father took the child to Child Protective Services where an interview of the fatherand the child was conducted and photographs of the child's face were taken. As a result, themother was indicated (see Social Services Law § 412 [7]) for lacerations, welts,bruises and inadequate guardianship. The father subsequently commenced this proceeding toobtain primary physical custody of the child. The parties stipulated to a temporary order grantingthe father physical custody of the child with the mother having regularly scheduled parentingtime.[FN*]After a hearing, Family Court found a significant change in circumstances warranting amodification of the existing custody order, awarded the father sole legal and physical custody ofthe child and limited the mother's parenting time to one 24-hour period each weekend. Themother now appeals.
Giving due deference to the credibility determinations made by Family Court, we find thatthe record supports the court's determination that there has been a change in circumstanceswarranting a modification of the prior custody order (see Matter of Siler v Wright, 64 AD3d 926, 928 [2009]). Forexample, the testimony and other evidence established that the child was exhibiting dangerousbehaviors arising out of significant emotional and behavioral issues that the mother had failed torecognize or adequately address—as demonstrated by, among other things, her refusal tocooperate with school officials and her discontinuance of psychological counseling for the childdespite their recommendations that such counseling was necessary—and that the motherhad used excessive corporal punishment. Therefore, Family Court properly proceeded to a bestinterests analysis (see Matter of Meyerv Lerche, 24 AD3d 976, 976-977 [2005]; see generally Matter of Nikki O. 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 v Martin, 61 AD3d1297, 1298 [2009]).
It is well settled that "[i]n 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 at 928). Here, a Child Protective Services caseworker testified that, duringhis interview with the child, the child reported that, when he failed to brush his teeth, his mother"hit [him] really, really hard," that "it was scary to be with mom" and that "when mommy's beingreally mean to him he scratches himself." It is undisputed that the mother did not believe thatpsychological counseling was necessary for the child. In addition, despite her knowledge that thechild had expressed suicidal thoughts, the mother refused to allow the school to contact herunless there was an emergency and, even then, the contact was limited to e-mail. Several schoolpersonnel testified to the mother's overall lack of cooperation. The mother's denials and/orexplanation of her alleged conduct created a credibility issue, which Family Court was in thebest position to resolve (see Matter ofBenjamin L., 9 AD3d 153, 155 [2004]).
In contrast, since the father has had physical custody of the child, he has facilitated thechild's participation in counseling on a regular basis. There was testimony from school personnelthat the child's self-mutilation behavior has ceased, there has been no expression of suicidalthoughts, the child's behavior and performance in school has substantially improved and thefather has fully cooperated with them. While there was also evidence of the father's shortcomingsas a parent, the record overwhelmingly supports Family Court's determination that an award ofprimary physical custody to the father is in the child's best interests.
Nonetheless, we do not find sufficient support in the record for Family Court's reduction ofthe mother's parenting time as compared with the parenting time she enjoyed under thetemporary order. There is no evidence that the parenting time that the mother enjoyed under thetemporary order was inimical to the child's best interests, nor did the father or the Law Guardianmake an argument to that effect. In fact, as set forth above, the evidence indicated that the childhad substantially improved under the custodial arrangements in place at the time of the trial. Inview of the general policy favoring frequent and regular access by the noncustodial parent, wecannot say that Family Court's limited schedule has a sound and substantial basis in the recordbefore us (compare Matter of Daniel vPylinski, 61 AD3d 1291, 1292 [2009]).
We also agree with the mother's assertion that Family Court improperly awarded the fathersole legal custody, as neither the petition nor the father's testimony provided the mother withnotice that he sought to modify the existing order of joint legal custody (see Matter of Adams v Bracci, 61AD3d 1065, 1067 [2009], lv denied 12 NY3d 712 [2009]; Matter of Williams vTaylor, 234 AD2d 809, 810-811 [1996]; compare Matter of Kowatch v Johnson, 68 AD3d 1493 [2009]).
Cardona, P.J., Rose, Malone Jr. and Garry, JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by reversing so much thereof as awarded petitioner solelegal custody and as limited respondent's parenting time to one 24-hour period per week; theparties are awarded joint legal custody of the child and matter remitted to the Family Court ofFulton County for a hearing on parenting time for respondent; and, as so modified, affirmed.
Footnote *: The mother's parenting timewas on Tuesdays and Thursdays from 5:30 p.m. to 7:30 p.m. and on alternate weekends fromFriday at 5:30 p.m. to Sunday at 5:30 p.m.