| Ehrenreich v Lynk |
| 2010 NY Slip Op 04668 [74 AD3d 1387] |
| June 3, 2010 |
| Appellate Division, Third Department |
| Lisa M. Ehrenreich, Appellant, v Darrin M. Lynk, Respondent.(And Another Related Proceeding.) |
—[*1] Trosset Group Attorneys, Cooperstown (Michael E. Trosset of counsel), for respondent. Karen Kimball, Wynantskill, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredJanuary 14, 2009, which, among other things, granted respondent's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter, born in 2004. In the spring of 2006, the parties reached a stipulation by which theyshared joint custody of the child, with primary physical custody to the mother. On their own theythen developed a shared parenting plan by which the child spent three nights and five days,including three weekdays, at the father's home in the Village of Cooperstown, Otsego County,and four nights and two days each week with the mother. In 2007, Family Court dismissed crosspetitions by the mother and father for sole custody and continued the prior custody arrangementand shared parenting schedule. In March 2008, the mother petitioned for modification to permitthe child to attend preschool in the Village of Fort Plain, Montgomery County, where she thenresided; the petition was dismissed. In August 2008, having relocated to the Town of Little Falls,Herkimer County, the mother petitioned to modify the parenting schedule to permit the child toattend a preschool there. By the time of the fact-finding hearing, however, she had returned toFort Plain and wished her daughter to attend preschool in that community. The father had [*2]meanwhile enrolled the child in a preschool in the Town ofMilford, Otsego County, which she attended on the three weekdays she spent with him, and hecross-petitioned for sole custody. In December 2008, following a fact-finding hearing, FamilyCourt awarded sole legal custody to the father, with visitation for the mother on alternateweekends and during holidays and school vacations. The court deferred the schedule changeuntil September 1, 2009, when the child was to begin kindergarten, continuing the originalshared parenting schedule in the interim. The mother now appeals.
A change of circumstances warranting the modification of a joint custody arrangement maybe found when "the relationship between joint custodial parents has deteriorated to the pointwhere they simply cannot work together in a cooperative fashion for the good of their children"(Matter of Blanchard v Blanchard, 304 AD2d 1048, 1049 [2003] [internal quotationmarks, citations and brackets omitted]). The record does not support a finding of such a changeof circumstances here. While the parents did require Family Court's assistance to resolve theirlong-standing difference on a single issue—the choice of the child's preschool[FN*]—there was no evidence that they disagreed or failed to cooperate about any other aspectof her welfare, such as medical care, discipline, or her relationships with their significant others.Beyond this one issue, they appear to have progressed in their communication since the priorcourt appearance. For example, the father sought the mother's consent before enrolling the childin such activities as a dance class and a youth soccer team; in both instances, the motherconsented, and attended the child's soccer games with her new husband. In spite of the mother'sdesire to send the child to preschool in her own community, she was supportive of the child'sexperience in the preschool chosen by the father. She testified that the child was doing wellthere, the father had put the mother's name on the preschool's mailing list at her request, and thenew wife kept her informed of preschool events. Both parties testified that the mother, the father,and his new wife had attended preschool conferences together and gone out to dinner afterwardas what the father described as "a big family." These are not the interactions of parents whoserelationship is "so acrimonious that they are incapable of putting aside their differences" (Matter of Lynch v Tambascio, 1 AD3d816, 817 [2003] [internal quotation marks and citations omitted]).
Notably, the parties have made significant progress in overcoming a previous problemarising from the antagonism of the father's wife toward the mother. At the time of the 2007proceedings, she had been arrested several times for harassing the mother and had violated aprotective order in the mother's favor; Family Court admonished the father at that time for failingto take measures to diminish this hostility. During the current proceedings, however, the fatherand new wife testified about their increased understanding of the negative effect of this behavioron the child. As a result, although the record indicates some continuing misunderstandings, theparties agree that the relationship has improved; the new wife and the mother communicateregularly in person, by telephone, and through text messages. All parties appear to havedemonstrated the ability to set aside their previous differences for the good of the child and tobehave in a " 'mature civilized fashion' " (Matter of Scialdo v Kernan, 14 AD3d 813, 815 [2005], quotingBraiman v Braiman, 44 NY2d 584, 590 [1978]). As both the mother and father areloving, fit parents who wish to share in the child's upbringing, are able to agree on many aspects[*3]of her life, and demonstrate more than "a modicum ofcommunication and cooperation" (Matter of Blanchard v Blanchard, 304 AD2d at 1049),joint custody shall be reinstated (see Matter of Lynch v Tambascio, 1 AD3d at 817;Matter of Darrow v Burlingame, 298 AD2d 651, 651-652 [2002]).
Nevertheless, as the mother and father reside in separate school districts, the child's entryinto kindergarten necessitated modification of the physical custody arrangement (see Matter of Williams v Boger, 33AD3d 1091, 1092 [2006]). The child was accustomed to spending the majority of her"school day" time at the father's home, she had attended preschool programs in his communityand developed friendships there, and she has a younger half-sibling in the father's home; thus,the record provides the requisite "sound and substantial basis" (Matter of Card v Rupert, 70 AD3d1264, 1265 [2010]) to support the award of physical custody to the father. Moreover, FamilyCourt appropriately permitted the shared schedule to continue as long as possible by deferringthe change until the beginning of the school year. However, the reduction in the mother'sparenting time with the child from roughly half of each week to little more than two days out ofevery 14 was unnecessarily drastic, and inconsistent with the stated goal of avoiding unnecessarydisruption in the child's life. Though not dispositive, this reduction was also inconsistent with theposition of the attorney for the child at trial, who asked the court to preserve the child's lovingrelationships with both parents by devising as nearly equal a schedule as possible. Thus, we findan increase in the mother's parenting time to be in the child's best interest (see Matter of Valentine v Valentine, 3AD3d 646, 647 [2004]). The record is sufficiently complete to permit this Court to avoiddelay by making the determination, so remittal is unnecessary (see id.; Matter ofBlanchard v Blanchard, 304 AD2d at 1050). Accordingly, the mother's current parentingtime with the child every Wednesday after school shall continue, her parenting time on weekendsduring the school year will be increased to two weekends out of every three, and the child willspend the majority of her summer vacation with the mother, and three nonconsecutive weeksduring the summer with the father; the father shall also have time with the child on twoweekdays and nights during alternating weeks or on alternating weekends during the period sheis with her mother, to be scheduled as the parties may agree. Family Court's other determinationswith respect to the parenting schedule shall remain undisturbed.
Cardona, P.J., Mercure, Peters and Kavanagh, JJ., concur. Ordered that the order is modified,on the law and the facts, without costs, by reversing so much thereof as awarded sole legalcustody of the child to respondent; the parties are awarded joint legal custody and their custodialtime with the child is adjusted as set forth in this Court's decision; and, as so modified, affirmed.
Footnote *: In addition to the mother'sMarch 2008 preschool-related petition, one of the issues addressed in the 2007 proceeding wasthe father's enrollment of the child in a preschool program over the mother's objection.