| Matter of Slovak v Slovak |
| 2010 NY Slip Op 07434 [77 AD3d 1089] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Tami Slovak, Petitioner, v James Slovak,Respondent. Daniel Gartenstein, as Attorney for the Child,Appellant. |
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Kavanagh, J. Appeal from an order of the Family Court of Columbia County (Hummel, J.),entered September 2, 2009, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
In October 2007, a consent order was entered granting petitioner (hereinafter the mother) andrespondent (hereinafter the father) joint legal and physical custody of their son (born in 2000).Pursuant to that order, the child lives with the mother each week from Saturday evening untilTuesday or Wednesday evening, with the date the child is to be returned to the father alternatingeach week. Seventeen months after that order was issued, the mother commenced this Family CtAct article 6 proceeding to modify the order and obtain sole legal and physical custody of thechild. In her petition, the mother alleged, among other things, that the custodial arrangement wasnot working because of the parties' inability to communicate with each other and the negativeimpact it was having on the child. After a hearing, Family Court found that the mother had failedto establish that circumstances had sufficiently changed to warrant a modification of the custodyorder and dismissed her petition. The attorney for the child [*2]now appeals.[FN*]
Initially, we reject the contention of the attorney for the child that Family Court erred inconcluding that the alleged deterioration in the mother and father's relationship is not acircumstance that requires modification of the joint custody arrangement. "A change ofcircumstances warranting the modification of a joint custody arrangement may be found when'the relationship between joint custodial parents has deteriorated to the point where they simplycannot work together in a cooperative fashion for the good of their children' " (Ehrenreich v Lynk, 74 AD3d1387, 1388 [2010], quoting Matter of Blanchard v Blanchard, 304 AD2d 1048, 1049[2003]). Here, Family Court has presided over numerous proceedings involving these sameparties and, after hearing from them, as well as the child's treating therapist and the father'sgirlfriend, concluded that "some disagreements notwithstanding, the parties['] communicationhas in fact dramatically improved, and both of these parents appear to be working towards theirson's best interest." This conclusion, in our view, enjoys substantial support in the record andshould not be disturbed (see Matter ofFerguson v Whible, 55 AD3d 988, 990 [2008]; Matter of Filippelli v Chant, 40 AD3d 1221, 1222 [2007]).
However, we do agree that the mother did establish that, since the consent order was issued,circumstances have changed to such an extent that the physical custody arrangement regardingtheir child should be altered (see Matter of McGovern v McGovern, 58 AD3d 911, 913[2009]; Matter of Filippelli v Chant, 40 AD3d at 1222; Matter of Robertson v Robertson, 40AD3d 1219, 1220 [2007]). In that regard, the child's psychologist not only diagnosed himwith pervasive development disorder, a tic disorder and attention deficit hyperactivity disorder,but also testified that he was having a difficult time adjusting to being transferred between hisparents in the middle of each week and that it would be "more advantageous" given hispsychological disorders that the transfer occur on a weekend. The therapist also noted a slightregression in the child's school work during the past school year and attributed it, in part, to thefact that, since the consent order was issued, the father has moved out of the school district andthe child, when with the father, has a 25-minute commute to school. In our view, thesedevelopments support the mother's claim that a substantial change in circumstances has occurredthat requires that the existing physical custodial arrangement be modified.
In determining what custodial arrangement would be in the child's best interest, a number offactors must be considered, including each parent's ability to provide the child with a stable homeenvironment, their past performance as parents, their relative fitness and ability to provide for thechild's well-being and the child's wishes (see Moor v Moor, 75 AD3d 675, 676 [2010]; Matter of Arieda v Arieda-Walek, 74AD3d 1432, 1433 [2010]; Matter ofCard v Rupert, 70 AD3d 1264, 1265 [2010]). Here, the mother has taken an active rolein the therapy the child is now receiving and has attended every therapy session with him. Shehas participated in meetings held with school personnel regarding his education and has closelymonitored his progress. We also note that the child has expressed a preference to live with herand, while not determinative, this desire deserves consideration in determining what custodialarrangements are best suited to his interests (see Matter of Flood v Flood, 63 AD3d 1197, 1198-1199 [2009]).As a result, we are of the view that it is in the child's best interest to be in the mother's custodywhile attending school, and we remit the matter to Family Court to develop a schedule thataddresses [*3]that need and, at the same time, provides the fatherwith adequate time with the child.
Mercure, J.P., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by reversing so much thereof as dismissed that part of thepetition seeking physical custody of the child; petition granted to said extent and matter remittedto the Family Court of Columbia County for further proceedings not inconsistent with thisCourt's decision; and, as so modified, affirmed.
Footnote *: Neither the mother nor thefather has filed a brief in response to the appeal.