| Matter of Timothy N. v Gwendolyn N. |
| 2012 NY Slip Op 01390 [92 AD3d 1155] |
| February 23, 2012 |
| Appellate Division, Third Department |
| In the Matter of Timothy N., Respondent, v Gwendolyn N.,Appellant. (And 14 Other Related Proceedings.) |
—[*1] Timothy N., Mt. Upton, respondent pro se. Lisa A. Natoli, Norwich, Attorney for the Children.
Garry, J. Appeal from an order of the Family Court of Chenango County (Sullivan, J.),entered June 28, 2010, which, among other things, granted petitioner's application, in 15proceedings pursuant to Family Ct Act articles 6 and 8, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofone daughter (born in 1997) and two sons (born in 2001 and 2006). The parties separated in June2008, and stipulated to a custody arrangement before Supreme Court in December 2008 in theirdivorce action. Their agreement provided for joint custody, with the children spending threeweeks of every month with the mother and one week of every month, alternating weekends, andTuesday evenings with the father. This stipulation was incorporated into the judgment of divorce,which was subsequently entered in February 2009. One day following entry, the father filed apetition in Family Court seeking modification of custody alleging, among other things, that themother had interfered with his scheduled visitation and denied him phone contact with thechildren. Numerous family offense and violation petitions were filed thereafter by the parties.Following a fact-finding hearing conducted over several days, as well as two Lincolnhearings, Family Court awarded sole custody to the father with visitation to the mother, andentered two orders of protection for the benefit of the father and his girlfriend. The mother [*2]appeals.[FN*]
"Where a voluntary agreement of joint custody is entered into, it will not be set aside unlessthere is a sufficient change in circumstances since the time of the stipulation and unless themodification of the custody agreement is in the best interests of the children" (Matter of Wiedenkeller v Hall, 37AD3d 1033, 1034 [2007], lv denied 8 NY3d 816 [2007] [internal quotation marksand citations omitted]; accord Matter ofFerguson v Whible, 55 AD3d 988, 989 [2008]). A sufficient change in circumstancesexists where the parties relationship has so deteriorated that joint custody is no longer appropriateor possible (see Matter of Keefe vAdam, 85 AD3d 1225, 1226 [2011]; Matter of Seacord v Seacord, 81 AD3d 1101, 1104 [2011]).
The mother contends that Family Court improperly relied on events occurring after the filingof the modification petition in determining that there had been a sufficient change incircumstances, and that any incidents occurring prior to the petition were insufficient to warrantreview of custody and the best interests of the children. We disagree. Although the fact-findinghearing encompassed all of the petitions, Family Court's analysis was properly restricted to, andsupported by, the evidence regarding the parties' relationship prior to the filing of the father'smodification petition. Testimony revealed that during the brief existence of the stipulated custodyagreement, the mother interfered with the father's scheduled visitation on numerous occasions,even forcing the children to hide in her house to deny the father parenting time with them. Indirect violation of the stipulation, she refused to allow the paternal grandmother to pick up thechildren, again to deny or delay the father's visitation. She frequently prevented the father fromcontacting the children by phone and threatened to change the children's surname to her own.Placing her own interests first, she refused to allow the daughter to bring her schoolwork alongwhen visiting with the father, and the daughter's grades suffered as a result. The mother alsocancelled after school activities for the older son to prevent the father and his family fromattending these events with the child. Considering this behavior and the resulting effect on theparties' ability to effectively communicate about the children, we agree with Family Court thatthere was a sufficient change in circumstances at the time the petition was filed (see Matter ofSeacord v Seacord, 81 AD3d at 1104; Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1101 [2007]).
We further find ample support in the record for the award of sole custody to the father. Uponreview, we accord deference to Family Court's credibility determinations, and its findings willnot be disturbed unless they lack a sound and substantial basis in the record (see Matter ofKeefe v Adam, 85 AD3d at 1226-1227). A best interests analysis should consider factorsincluding "maintaining stability in the children's lives, the quality of respective homeenvironments, the length of time the present custody arrangement has been in place, each parent'spast performance, relative fitness and ability to provide for and guide the children's intellectualand emotional development, and the effect the award of custody to one parent would have on thechildren's relationship with the other parent" (Matter of Opalka v Skinner, 81 AD3d 1005, 1006 [2011]; seeMatter of Kilmartin v Kilmartin, 44 AD3d at 1102). " '[W]here, as here, the existing [*3]custody arrangement is borne of the parties' agreement, rather thanas the result of a plenary hearing before Family Court, it is only one of the factors to consider indetermining what is best for the child[ren]' " (Matter of Wiedenkeller v Hall, 37 AD3d at1034, quoting Matter of Eck v Eck,33 AD3d 1082, 1083 [2006]).
In addition to the mother's actions prior to the filing, as described above, during thefact-finding hearing she admitted to subsequently harassing the father with text messages, phonemessages, and e-mails. Other testimony revealed that she cancelled mental health and dentalappointments for the children that were scheduled during the father's visitation time and refusedto share medical, educational, and other important information about the children with him. Sheallowed the daughter to read a disturbing text message sent during an exchange with the father'sgirlfriend, as well as a violation petition filed by the father. As a result, she was indicated forinadequate guardianship following a child protective investigation. There was additionaltestimony that the mother reprimanded the children for discussing the father and his girlfriend inher presence and that she instructed the children to speak negatively to others about the fatherand the girlfriend. She had a physical altercation with the daughter when the daughter attemptedto bring her backpack on a visit with the father, and endeavored to block the children fromspeaking to the father and his family in public.
By contrast, the father did not interfere with the mother's custody rights nor attempt toalienate her from the children. In an effort to be readily available for the children, the father madearrangements with his employer to work locally and ended his commitment to the ArmyReserves. The children's well-being showed improvement in several respects after their visitationwith the father increased, and he has engaged them in counseling. The children share a goodrelationship with both the father and his girlfriend. Accordingly, the record fully supports FamilyCourt's determination that an award of sole custody to the father was in the best interests of thechildren (see Matter of Seacord v Seacord, 81 AD3d at 1104; Matter of Eck vEck, 33 AD3d at 1084).
Peters, J.P., Lahtinen, Kavanagh and Stein, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The mother's brief addressesonly the award of sole custody to the father; any remaining arguments with respect to FamilyCourt's order are deemed abandoned (see Matter of Carl v McEver, 88 AD3d 1089, 1090 n [2011]; Matter of Lagano v Soule, 86 AD3d665, 666 n 4 [2011]).