| Matter of Whitcomb v Seward |
| 2011 NY Slip Op 05913 [86 AD3d 741] |
| July 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of Hope E. Whitcomb, Appellant, v ClaudeD. Seward, Respondent. |
—[*1] Ted J. Stein, Woodstock, for respondent. Daniel Gartenstein, Kingston, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Sullivan County (Ledina, J.), enteredJune 8, 2010, which partially dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father), residents ofSullivan County who never married, are the parents of a daughter, born in 2000. Pursuant to a2001 order of custody, entered upon consent, the parties had joint legal and shared physicalcustody; the child, then an infant, alternated living with each parent, three nights with the father(Saturday to Tuesday) and then four nights with the mother (Tuesday to Saturday). The motherwas also given one full weekend per month, and the parties agreed to "share the [h]oliday[s] asmutually agreed" with specific provisions for birthdays and Mother's/Father's Day. Thereafter,the mother lived in various places including out of state, and the parties followed a differentmutually agreed to schedule—never reduced to a court order—in which the childalternated two weeks with each parent. In 2005, the mother returned to Sullivan County. In 2007,the 2001 order was tentatively modified on the father's petition, by providing that joint legalcustody would continue but, in the event the mother relocated, the father would be grantedprimary physical custody with a parenting time schedule outlined for the mother. The mothernever relocated.[*2]
In April 2008, the mother commenced this proceeding formodification of the 2001 order, seeking primary physical custody of the child, then seven yearsold, to allow more time with the mother's family and the child's school friends, claiming that thefather lacked the time and resources to maintain the child's lifestyle. She requested that thefather's parenting time be reduced to alternating weekends, which the father strongly opposed.After a two-day hearing and a Lincoln hearing with the child, Family Court continuedjoint legal custody, but modified the 2001 order to provide that the child will alternate weekswith each parent (Tuesday to Tuesday) to allow "each parent significant[,] uninterruptedparenting time with the child in approximately equal shares." The court also established aspecific and comprehensive holiday/summer schedule, which is operative if the parties remainunable to agree on how to share this time. The mother now appeals, arguing that the court'smodification order was an abuse of discretion because she is the "more suitable parent" andbetter able "to provide the child with a stable home." We disagree, and affirm.
As a threshold matter, "the alteration of an established custody arrangement will be orderedonly upon a showing of a sufficient change in circumstances reflecting a real need for change inorder to insure the continued best interest of the child" (Matter of Passero v Giordano, 53 AD3d 802, 803 [2008] [internalquotation marks and citations omitted]). Under that test, an order entered on consent, without aplenary hearing, is entitled to less weight (see Redder v Redder, 17 AD3d 10, 13 [2005]). While Family Courtmade no express finding on the existence of a change in circumstances, remittal is not necessarygiven that the hearing record is complete, the court made significant factual findings, and ourCourt has authority to independently review the record, which fully supports the existence of therequisite change in circumstances (see Matter of Troy SS. v Judy UU., 69 AD3d 1128,1130 [2010], lv dismissed and denied 14 NY3d 912 [2010]; Matter of Cree v Terrance, 55 AD3d964, 965-966 [2008], lv denied 11 NY3d 714 [2008]).
Foremost, the parties long ago effectively abandoned the parenting schedule in the 2001order, having crafted various schedules as their circumstances changed (see Matter of Kilmartin v Kilmartin, 44AD3d 1099, 1101 [2007]). The 2001 order did not contain a detailed holiday/summerschedule, which the parties presently desire and need given their disagreement regarding how toresolve holidays falling during one parent's custodial time. Further, the parties developedmaterially differing parenting styles that now present some adverse consequences for the child;the mother scheduled the child for numerous daily organized activities, without consulting thefather, which the child reportedly does not attend during her time with the father,[FN*]causing detriment to the child. Adopting the court's factual findings, we find that a change incircumstances was demonstrated.
Family Court's determination modifying the parties' parenting time is supported by a soundand substantial basis in the record (seeMatter of Seacord v Seacord, 81 AD3d 1101, 1104 [2011]). Since 2007, the parties hademployed an irregular custodial schedule in which each month the child lived with her mother atotal of 16 nights, including one weekend, and with her father 10 nights, including twoconsecutive weekends; while she spent only four consecutive nights away from her mother, shespent 10 consecutive nights without her father.[*3]
The proof at the hearing demonstrated that both partieslove and care for the child; both desire to be with her as much as possible and cultivate herrelationship with their own partners, parents and extended families. Neither raised allegationsregarding the parenting skills or home environment of the other and both give the childsignificant attention during their custodial time, albeit in different manners. At the time of the2008 hearing, the mother and her partner continued to live with her parents and teen sibling in afarmhouse in the Town of Bethel, Sullivan County; the child is close to her maternalgrandparents. The mother and her partner, who traveled to his out of town job in alternatingweeks, were under contract to purchase a four-bedroom home nearby in White Lake, SullivanCounty; both homes are near the child's school. The mother, who had no other children, workedpart time at a school and volunteered daily in the child's classroom. She scheduled the child innumerous structured activities, some requiring significant travel time, but did not discuss thesecommitments with the father, although they also fell on days when he had physical custody. Shealso engaged in a variety of additional one-on-one activities with the child and explained that sherequested the custodial modification to create a more stable "home base," to prevent the childfrom missing her activities and to allow her more time with nearby school friends and moreunscheduled mother-daughter time.
The father testified that he has stable full-time employment with some flexibility to work athome. He lived in a four-bedroom house about 20 minutes from the child's school, in Hurleyville,Sullivan County, with his partner of six years, a schoolteacher who has known the child most ofher life, their infant son, and her children, ages 14 and 15; all relationships were described inpositive terms. He drives the child to school when he has custody, and they typically spend theircustodial time with the family having dinner, allowing the child free time to play or at the libraryor on day trips. He expressed some concern about the child's overloaded schedule of activities.He wished to continue taking the child for periodic weekend visits to his parents' out of townhomes, which would have been unworkable under the mother's request to reduce his parentingtime.
In determining the best interests of the child, Family Court appropriately took intoconsideration all relevant factors, including the child's wishes and need for stability, the nurturinghome environments of both parents and their ability to provide for her overall well-being, eachparent's past performance, fitness and ability to provide for her development and to guide her,and the child's close relationship with both family units and extended families (see Matter ofTroy SS. v Judy UU., 69 AD3d at 1131; Matter of Kilmartin v Kilmartin, 44 AD3dat 1102). The record supports the conclusion that joint legal and shared physical custodycontinues to be workable and in the child's best interests. Indeed, the evidence reveals that asidefrom some differences of opinion regarding holidays and the child's activities, there was acommendable degree of cooperation and the child has thrived (cf. Matter of Troy SS. v JudyUU., 69 AD3d at 1131; Matter of Kilmartin v Kilmartin, 44 AD3d at 1101). In ourview, the court's order of modification providing for alternating weekly parenting time andshared holidays represents a beneficial arrangement that will promote the child's well-being.
While the mother's desire to have more time with the child and to continue her full slate ofscheduled and unscheduled activities to nurture her talents and interests are understandable, wecannot disagree with Family Court's implicit conclusion that the father's time and activities withthe child are equally nurturing and beneficial. The court's order reasonably requires the parties toobtain the consent of the other before enrolling the child in any organized activity or committingher to activities that will take place during the other parent's custodial time, and requires theparties during their respective custodial times to insure the child's attendance thereat. [*4]This will reduce the confusion created by the former practice inwhich the mother unilaterally scheduled the child's weekly activities. The court's order fulfills thedesirable objective of equalizing and regularizing the child's time in both of her homes whilecompelling both parents to recognize the limitations that their circumstances have placed on herdivided time. The best interests of the child were clearly achieved.
Finally, a review of the record as a whole does not support the argument of the appellateattorney for the child that the attorney representing her in Family Court failed to abide all of hisethical and representational obligations to his client (see Family Ct Act §§241, 249; 22 NYCRR 7.2; see alsoMatter of Krieger v Krieger, 65 AD3d 1350, 1352 [2009]).
We have considered the mother's remaining arguments and find them unavailing.
Mercure, J.P., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The record is not clear whetherthe father had the necessary information or was requested to take the child to these activitiesduring his custodial time, or his ability to do so.