| Matter of Robert SS. v Ashley TT. |
| 2010 NY Slip Op 06018 [75 AD3d 780] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Robert SS., Appellant, v Ashley TT.,Respondent. (And Two Other Related Proceedings.) |
—[*1] Holly Mosher, Public Defender, Watkins Glen (Wesley A. Roe of counsel), for respondent. Daniel J. Fitzsimmons, Watkins Glen, attorney for the children.
Stein, J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered July 1, 2009, which, among other things, partially granted petitioner's application, inthree proceedings pursuant 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 two children born in 2003 and 2004. The mother and father separated in 2005.Pursuant to a stipulation between the parties, in July 2005, Family Court entered an order of jointlegal custody with primary physical custody awarded to the mother. Commencing soonthereafter, the parties began having disputes concerning the father's visitation, resulting in atleast five modifications to the visitation order since March 2006. The father commenced the firstof the instant proceedings in August 2008 alleging that the mother was violating the order then ineffect by allowing her husband to be present during the parties' exchanges of the children. Thefather also filed a petition seeking a modification of custody. The mother then commenced aproceeding alleging that the father was sexually abusing their daughter and seeking to limit thefather's visitation with the children. Family Court granted the father's violation petition, [*2]dismissed the mother's petition and partially granted the father'smodification petition.[FN1]The father now appeals.[FN2]
We affirm. An alteration of an established custody arrangement requires a showing of a "'change in circumstances reflecting a real need for change in order to insure the continued bestinterest of the child' " (Matter ofPassero v Giordano, 53 AD3d 802, 803 [2008], quoting Matter of Van Hoesen vVan Hoesen, 186 AD2d 903, 903 [1992]; see Matter of Mabie v O'Dell, 48 AD3d 988, 989 [2008]). Here,since the prior court order, the mother has married and has a child with her current husband. Inaddition, her husband has been convicted of certain criminal charges, about which the motherhad only limited information at the time of the prior proceedings. The father contends that themother has engaged in a pattern of behavior that was so egregious in nature that it warrants amodification of the custody arrangement. Specifically, he points to the mother's false allegationsthat he sexually abused the parties' daughter, the mother's alleged interference with his visitation,her denial of his telephone contact with the children and her disparagement of him in thepresence of the children. The father also argues that the mother's home is unstable due to thepresence of her current husband, who he contends is a danger to the children. In contrast, thefather asserts that he has purchased a home in which each child has his or her own bedroom, thathe would foster a relationship between the children and their mother and that he has achievedstability in his life.
Each party has accused the other of failing to show up for visitation exchanges. The fathertestified that he was denied visitation on certain occasions, while the mother and hermother-in-law testified that there were numerous instances when they brought the children to thedesignated exchange site and the father failed to appear. Family Court credited the mother'stestimony over that of the father and indicated its belief that the mother misunderstood thevisitation arrangements. Similarly, there was conflicting testimony regarding whether the fatherwas denied his right to telephone contact with the children or whether he simply did not attemptto call them. Although the mother concedes that she has, in the past, disparaged the father in thechildren's presence, she denies that she has intentionally interfered with the father's visitation. Inaddition, she acknowledges that her disparagement of the father was wrong and asserts that sheis working to rectify her behavior in this regard. Family Court apparently credited this testimonyas well.
Family Court's finding that "little has changed for the better in the 3 years [since] the last fullhearing before [the] [c]ourt" and that there was not a sufficient change in circumstances towarrant a modification of custody has a sound and substantial basis in the record. Indeed, boththe father's attorney and the attorney for the children acknowledged at trial that thecircumstances had not changed since the prior order, but argued that a change in custody was inthe children's [*3]best interests due to the mother's intentionalalienation of the father from the children. Notably, Family Court found that the mother was noless fit to have custody of the children than she was at the time of the previous order and alsoobserved that the father's employment provided little flexibility for more time with the children.
Viewing the totality of the circumstances and according deference to Family Court'scredibility assessments (see Matter of Passero v Giordano, 53 AD3d at 803; Matterof Mabie v O'Dell, 48 AD3d at 989; Matter of Gravelding v Loper, 42 AD3d 740, 742 [2007]), whilewe do not condone the mother's conduct, we find ample support in the record for Family Court'sdetermination and discern no basis to disturb it.
Rose, J.P., Lahtinen, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Despite its finding that thefather had failed to demonstrate a change in circumstances warranting a modification of custody,Family Court made some minor changes to the previous order, primarily to give the parties moredetailed guidance regarding the father's visitation.
Footnote 2: As limited by his brief, thefather challenges Family Court's determination insofar as it declined to award custody to him.