| Matter of Hetherton v Ogden |
| 2010 NY Slip Op 08815 [79 AD3d 1172] |
| December 2, 2010 |
| Appellate Division, Third Department |
| In the Matter of James D. Hetherton, Respondent, v Shiana Ogden,Appellant. (And Three Other Related Proceedings.) |
—[*1] Scott N. Fierro, Public Defender, Elmira (Samuel Castellino of counsel), for respondent. Pamela B. Bleiwas, Ithaca, attorney for the child.
Garry, J. Appeal from an order of the Family Court of Chemung County (Hayden, J.), enteredSeptember 2, 2009, which, among other things, granted petitioner's application, in four proceedingspursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents of a childborn in 2007. The mother also has a daughter from a previous relationship. The mother and fatherended their relationship in 2007 and agreed to the entry of a custody order by which the motherreceived physical custody and the father received visitation rights. Thereafter, the mother, her daughterand the child resided with the mother's mother (hereinafter the grandmother). In January 2008, thefather moved to Georgia to live with his parents. After a disagreement with the grandmother in January2009, the mother left the grandmother's home and asked the father to take both children until she couldfind a place to live. The parties met in Virginia for this purpose. The father returned to Georgia with thechildren while the mother and three friends continued to travel on a trip through several southern states,including Georgia.
The father filed modification proceedings in March 2009 seeking custody of the child, [*2]and the mother then filed violation and modification proceedings, allegingthat the father had refused to return the child to New York. In May 2009, Family Court awardedtemporary custody to the father. After a hearing, the court granted joint legal custody to both partieswith primary physical custody to the father and visitation tailored to the school calendar for the mother,who now appeals.
As the party seeking modification, the father bore the burden to show that a substantial change incircumstances warranted modification of the prior custody order in furtherance of the child's bestinterests (see Matter of Rue v Carpenter,69 AD3d 1238, 1239 [2010]; Matter ofSiler v Wright, 64 AD3d 926, 928 [2009]). The mother first contends that there was nochange of circumstances sufficient to justify a custody modification. The record demonstrates that themother's living situation became unstable in January 2009, at which time she effectively abdicated herrole as the child's primary caregiver, at least temporarily, by leaving the child with the grandmother atfirst and then delivering both children to the father (see Matter of Billets v Bush, 63 AD3d 1203, 1204 [2009]; Matterof Le Blanc v Morrison, 288 AD2d 768, 771 [2001]). The mother's testimony that she did notintend the child to remain with the father for more than a few weeks was contradicted by the father'stestimony—supported by a recording he made of a January 2009 telephone conversation withthe mother—that she asked him to keep the child for several months. Further supporting thefather's claim, the mother did not personally attempt to retrieve the child until she traveled to Georgiafor that purpose in May 2009, at which time the father permitted the child to return with her to NewYork.[FN*]Moreover, even if the mother initially intended the child's stay with the father to last only a few weeks,there was no evidence that she took advantage of the child's absence during that period to obtain anapartment or otherwise improve the stability of her living situation; on the contrary, although she testifiedthat she could not afford to rent an apartment, she used a tax refund that she received at that time tofinance the vacation trip.
At the time of the September 2009 hearing, the mother had acquired an apartment, but hercircumstances remained relatively unstable. She testified that she was working in a part-time positionproviding day care for a relative and that her income was insufficient to cover her living expenseswithout help from the grandmother. The record was unclear as to whether the differences between thegrandmother and the mother that had previously disrupted her living situation had been resolved. Forthese reasons, upon our review of the record, we are satisfied that the destabilization of the mother'sliving situation constituted a change of circumstances requiring review of the child's best interests (see Matter of Cool v Malone, 66 AD3d1171, 1172-1173 [2009]; Matter ofSamuel v Samuel, 64 AD3d 920, 921 [2009]).
The record further supports Family Court's conclusion that awarding physical custody to the fatherwas in the child's best interests. Such a determination requires consideration of " 'the relative fitness,stability, past performance, and home environment of the parents, as well as their ability to guide andnurture the [child] and foster a relationship with the other parent' " (Matter of Arieda v Arieda-Walek, 74 AD3d 1432, 1433 [2010],quoting Matter of Cukerstein v Wright,68 AD3d 1367, 1368 [2009]). Where, as here, the prior custody order was based on the parties'[*3]agreement, it is afforded less weight than a determination renderedafter a full hearing (see Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1131 [2010], lvdismissed and denied 14 NY3d 912 [2010]; Matter of Colwell v Parks, 44 AD3d 1134, 1135 [2007]). Family Courtfound that while both parents were "relatively fit," they both displayed some immaturity and otherparental shortcomings; in particular, the court noted that the mother's decision-making reflectedquestionable maturity, and it expressed "strong skepticism" with regard to the credibility of her accountof the southern trip in which she dropped off the children with the father. The mother gave confusingand contradictory accounts of the nature and purpose of this excursion. Several witnesses testified that,during the trip, neither the child nor the mother's daughter were properly dressed, fed or cared for.There was testimony that the mother did not keep the child's immunizations and medical care up to datewhile he was in her custody. A case manager who had worked with the mother for several years in aprogram offering support services to young parents testified that, for unspecified reasons, the mother'sdaughter had previously been removed from her care and put into placement, and the father testifiedthat the mother had associated with a level two sex offender while the children were in her company.Finally, the credibility of some of the mother's testimony was questionable; she claimed that the voice inthe telephone recording of her conversation with the father might not be hers, and there was evidencethat she had misrepresented to the father and to Family Court personnel certain advice that she claimedwas given to her by the attorney for the child.
In contrast to the mother's unstable circumstances, the father maintained a stable residence andsteady full-time employment with the assistance of his parents, who were available to care for the childwhile the father was at work. After the child arrived in Georgia, the father obtained medical insurancecoverage and pediatric care for him. Although the father's relationship with the mother had included anepisode in which he hit her in a restaurant and there was evidence that he had failed to complete ananger management course mandated by the 2007 custody order, the father acknowledged thewrongfulness of his conduct and expressed remorse for it. Witnesses for both parties, including thegrandmother, with whom he and the mother had lived during their relationship, described him as a goodfather. Notably, when the mother asked him to do so, he willingly accepted the care not only of thechild but also of the mother's daughter, who was not his child, and he notified the mother of certainconcerns relating to the daughter's health and behavior that he noticed during her stay with him.Accordingly, considering the totality of the circumstances and giving the appropriate deference toFamily Court's credibility assessments (seeMatter of Robert SS. v Ashley TT., 75 AD3d 780, 782 [2010]; Matter of Passero v Giordano, 53 AD3d802, 803 [2008]), we find a sound and substantial basis in the record for the court's determinationand discern no reason to disturb it.
Cardona, P.J., Mercure, Lahtinen and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The grandmother retrieved thedaughter in March or April 2009; the parties disagree as to whether the grandmother also attempted topick up the child at that time and whether the father refused to allow her to do so.