| Matter of Knight v Knight |
| 2012 NY Slip Op 01155 [92 AD3d 1090] |
| February 16, 2012 |
| Appellate Division, Third Department |
| In the Matter of Karen M. Knight, Respondent, v Brian C. Knight,Respondent. |
—[*1] Gerald J. Ducharme, Canton, for respondent. Diane J. Exoo, Canton, attorney for the children.
Egan Jr., J. Appeal from a modified order of the Family Court of St. Lawrence County(Potter, J.), entered September 1, 2010, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the divorcedparents of three children, Christopher (born in 1992), Ashley (born in 1994) and Andrew (born in1998). Pursuant to the terms of their 2001 separation agreement, the parties shared joint legalcustody of the children with primary physical custody to the mother and mutually agreed-uponvisitation to the father. In September 2009, and in satisfaction of a two-count indictment, thefather pleaded guilty to sexual abuse in the second degree and was sentenced to 60 days in thelocal jail. The charges stemmed from the father's inappropriate touching of his then live-ingirlfriend's eight-year-old daughter. Shortly thereafter, the mother commenced this modificationproceeding seeking sole custody of the children and supervised visitation for the father.Following various hearings, Family Court granted the mother's application, and the father nowappeals.
We affirm. Preliminarily, to the extent that Family Court's bench decision and resultingorders do not fully comport with the requirements of CPLR 4213 (b), the rationale for the court's[*2]determination nonetheless may be discerned and, in anyevent, the record before us is sufficiently developed to permit this Court to exercise itsindependent review power in this regard (see Matter of Cree v Terrance, 55 AD3d 964, 966 [2008], lvdenied 11 NY3d 714 [2008]; Matter of Hall v Keats, 184 AD2d 825, 825-826[1992]; compare Matter of McGovern v McGovern, 58 AD3d 911, 915 [2009]; Matter of Whitaker v Murray, 50 AD3d1185, 1186-1187 [2008]).
Turning to the merits, "[a]n existing custody arrangement may be modified upon a showingthat there has been a subsequent change of circumstances and modification is required to ensurethe best interests of the children" (Matter of Hayward v Thurmond, 85 AD3d 1260, 1261 [2011][internal quotation marks and citations omitted]; accord Matter of Anthony MM. v Jacquelyn NN., 91 AD3d 1036,1037 [2012]). Once a change in circumstances has been established, the court must determinewhether the proposed modification will serve the children's best interests—an inquiry thatinvolves consideration of a number of factors, including—among otherthings—"maintaining stability in the children's lives, the quality of [the] respective homeenvironments . . . and [each parent's] ability to provide for and guide the children'sintellectual and emotional development" (Matter of Opalka v Skinner, 81 AD3d 1005, 1006 [2011]; Matter of Rikard v Matson, 80 AD3d968, 969 [2011], lv denied 16 NY3d 709 [2011]). Here, the father's sexual abuse ofthe eight-year-old daughter of his live-in girlfriend (who had resided in his household for fiveyears at the time of the offense), his subsequent attempts to minimize his relationship with thevictim and his corresponding lack of insight as to the impact that his conduct and resultingconviction had upon both the victim and his biological children reflect a serious lapse injudgment and, further, "evidence[ ] a willingness to advance [his] own interests at the expense ofothers" (Matter of Jeker v Weiss, 77AD3d 1069, 1073 [2010]), thereby demonstrating the requisite change in circumstances.Additionally, in view of—among other relevant considerations—the father'sestrangement from his children at the time of the hearing and the fact that he was, at that point,an untreated sex offender, we cannot say that Family Court's decision to award sole legal andphysical custody of Ashley and Andrew[FN1]to the mother lacked a sound and substantial basis in the record.
As to the visitation issue, Family Court awarded the father supervised visitation at such timesas he, the mother and one of the seven approved supervisors could agree, but no less than twohours biweekly.[FN2]"The determination of whether visitation should be supervised is a matter [*3]left to Family Court's sound discretion and it will not be disturbedas long as there is a sound and substantial basis in the record to support it" (Matter of Beard v Bailor, 84 AD3d1429, 1430 [2011] [internal quotation marks and citations omitted]; accord Matter of Vasquez v Barfield,81 AD3d 1398, 1398 [2011]; Matter of Kaleb U. [Heather V.—Ryan U.], 77 AD3d 1097,1100 [2010]). Although the father testified that he accepted responsibility for his behavior andhad plans to enter a recommended treatment program, given that he had yet to enter treatment atthe time of the hearing and in view of the documented impact that his behavior had upon hischildren, Family Court's decision to award supervised visitation represented a sound exercise ofits discretion.
Finally, we find no merit to the father's claim of ineffective assistance of counsel. "A findingof ineffective assistance of counsel requires that the proponent demonstrate that he [or she] wasdeprived of reasonably competent and, thus, meaningful representation" (Matter of Rosi v Moon, 84 AD3d1445, 1447 [2011] [internal quotation marks and citation omitted]; see Matter of Arieda v Arieda-Walek,74 AD3d 1432, 1434 [2010]). Here, counsel actively participated in the fact-finding hearingby, among other things, effectively cross-examining the mother's witnesses and makingappropriate and often successful objections (see Matter of Bunger v Barry, 88 AD3d 1082, 1083 [2011];Matter of Rosi v Moon, 84 AD3d at 1447). To the extent that the father finds fault withcounsel's closing, which focused primarily upon securing some form of visitation for the father,counsel's decision in this regard may—given the nature of the father's offense—beviewed as a legitimate trial tactic (seeMatter of Elizabeth HH. v Richard II., 75 AD3d 670, 670-671 [2010]; Matter of Hurlburt v Behr, 70 AD3d1266, 1267-1268 [2010], lv dismissed 15 NY3d 943 [2010]). The father's remainingarguments, to the extent not specifically addressed, have been examined and found to be lackingin merit.
Lahtinen, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the modified order isaffirmed, without costs.
Footnote 1: Christopher turned 18 during thependency of this proceeding and, as such, Family Court no longer had jurisdiction to determinecustody of him (see Matter of Larock v Larock, 36 AD3d 1177, 1177-1178 [2007]).
Footnote 2: Following the fact-findinghearing, Family Court asked the parties to submit a list of potential supervisors. The father didnot tender the requested list—apparently due to an interim change in counsel. Uponreceiving a letter from the father objecting to the supervisors approved by the court, Family Courtrevisited this issue, allowed the father to offer his own list of potential candidates, adducedadditional proof thereon and thereafter issued the modified order that is the subject of this appeal,which includes—as approved supervisors—some of the individuals proposed by thefather.