| Matter of Owens v O'Brien |
| 2012 NY Slip Op 00144 [91 AD3d 1049] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Arlene Tracey Owens, Appellant, v MichaelEmmett Thomas O'Brien, Respondent. |
—[*1] Ronald T. Walsh, Cortland, for respondent. Natalie B. Miner, Homer, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Cortland County (Campbell, J.),entered November 19, 2010, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
The parties are the parents of a son (born in 2005). In October 2009, Family Court entered anorder, on consent of the parties, awarding them joint custody, with respondent (hereinafter thefather) having physical placement of the child and petitioner (hereinafter the mother) havingliberal visitation as the parties could agree. Soon thereafter, the mother sought to modify theorder on the basis that the father was acting uncivilly towards her and she raised concerns aboutthe father's alleged drug use. In June 2010, Family Court entered an order, again on consent ofthe parties, which continued the parties' shared legal custody and the father's primary physicalcustody of the child, but specified the mother's parenting time.
In July 2010, the mother commenced this proceeding, alleging that the father had [*2]violated the terms of his probation[FN*]by failing a drug test and that he was entering an inpatient rehabilitation program. Shesubsequently filed an amended petition seeking modification of the prior custody order, whichcontained additional allegations regarding the child's absences from school. After a fact-findinghearing, Family Court dismissed the mother's amended petition. The mother now appeals and weaffirm.
In order to warrant modification of the existing order of custody, the mother was required todemonstrate "a change in circumstances reflecting a real need for change in order to insure thecontinued best interest of the child" (Matter of Joseph A. v Jaimy B., 81 AD3d 1219, 1220 [2011][internal quotation marks and citations omitted]). Not until a change in circumstances has beenestablished is Family Court permitted to proceed to a best interest analysis (see id. at1221). The mother's sole contention on appeal is that Family Court erred in finding that thefather's drug use, alone, was not a sufficient change in circumstances to warrant modification ofthe prior custody order. We disagree.
The father's probation officer, Benjamin Wheaton, testified that the father—who issubject to random drug testing by the Probation Department and family counselingservices—last tested positive for drugs in March 2010, prior to the June 2010 order.Wheaton further testified that the father is in compliance with the terms and conditions of hisprobation, participates in various drug abuse outpatient treatment programs and voluntarilycompleted a short-term rehabilitation program in July 2010. Wheaton believed that the father wasno longer using drugs. In addition, Wheaton, a former child protective investigator, testified thathe had no concerns about the father's parenting abilities.
According great deference to Family Court's credibility determinations (see Matter of Lewis v Tomeo, 81AD3d 1193, 1195 [2011]; Matter ofRobert SS. v Ashley TT., 75 AD3d 780, 782 [2010]), we find a sound and substantialbasis in the record to support Family Court's determination that the mother failed to demonstratea change in circumstances since entry of the prior order. The mother had raised concerns aboutthe father's drug use prior to the entry of the existing custody order, to which the motherconsented. In addition, we find no fault with Family Court's finding that the father was no longerabusing drugs. Accordingly, Family Court properly dismissed the mother's petition. Although byno means determinative, we note that this conclusion is consistent with the position advanced bythe attorney for the child (see Matter ofSiler v Wright, 64 AD3d 926, 929 [2009]).
Spain, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: Apparently, this was the resultof a conviction for trespass.