| Matter of Ildefonso v Brooker |
| 2012 NY Slip Op 03239 [94 AD3d 1344] |
| April 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Nicholas Ildefonso, Appellant, v Tara Brooker,Respondent. |
—[*1] Thomas F. Garner, Middleburgh, for respondent. Rosemarie Richards, Gilbertsville, attorney for the children.
Stein, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredNovember 30, 2010, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarriedparents of two children (born in 2007 and 2009). In December 2009, the mother commenced aproceeding seeking sole custody of the children. The father did not appear at the scheduledfact-finding hearing in February 2010 and Family Court awarded the mother sole custody bydefault. The father appeared at Family Court approximately one hour after the court issued thedefault custody order from the bench and commenced the instant proceeding by filing a petitionseeking modification of the custody order made that day. After a fact-finding hearing, FamilyCourt determined that the father failed to demonstrate a change in circumstances warrantingmodification of the prior order and dismissed the father's petition. The father now appeals and weaffirm.
It is axiomatic that, before a court may modify a prior custody order, the petitioner mustdemonstrate, first, a change in circumstances occurring after issuance of the order sought to be[*2]modified and, second, that modification of the previous orderis necessary to ensure the children's best interests (see Matter of Spiewak v Ackerman, 88 AD3d 1191, 1192 [2011];Matter of Deuel v Dalton, 33 AD3d1158, 1159 [2006]). Here, the father argues that, notwithstanding the explicit terminology ofhis petition, it should have been treated as a cross petition for custody, rather than as amodification petition, and that a showing of a change in circumstances should not have beenrequired before proceeding to a best interests analysis. We disagree.[FN1]
Family Court properly determined that the father failed to demonstrate the requisite changein circumstances. At the time the father filed his petition, less than an hour had passed since thedefault custody order was issued. Inasmuch as the petition itself "fails to factually aver anychange in circumstances" (Matter of Deuel v Dalton, 33 AD3d at 1159) and, moreover,no evidence of such a change during the relevant period was adduced during the fact-findinghearing, the father was not entitled to a best interests determination (see Matter of Clark v Ingraham, 88AD3d 1079, 1079 [2011]). Thus, the petition was properly dismissed.
Nonetheless, Family Court did consider the evidence adduced at the hearing regarding thechildren's best interests and provided a lengthy analysis of that evidence. In our view, accordingdue deference to Family Court's ability to observe the witnesses and assess their credibility (see Matter of Kimberly CC. v GerryCC., 86 AD3d 728, 730-731 [2011]), the record amply supports Family Court'sdetermination that joint custody would be inappropriate (see Matter of Melissa WW. v Conley XX., 88 AD3d 1199, 1200[2011], lv denied 18 NY3d 803 [2012]), and that the best interests of the children wouldnot be served by awarding sole custody to the father (see Matter of Shearer v Spisak, 90 AD3d 1346, 1347 [2011]).
We also reject the father's contention that Family Court erred in failing to provide him withvisitation rights. While the father's petition was denominated as seeking visitation, as well ascustody, the body of the petition requested "custody. I want to see and be with my FAMILY &KIDS OR NOTHING. ALL TOGETHER." Even assuming that the petition did seekvisitation, the record amply supports Family Court's finding that the father "has serious mentalhealth issues, that he is in serious need of anger management, among other things, and that untilhe recognizes those needs and obtains that treatment it is not in these children's best interest[s] tohave any contact with him whatsoever." For example, there was testimony regarding, amongother things, the father's animosity toward the mother, domestic violence incidents during whichthe children were present—some of which led to the father's conviction of various crimesand his incarceration—the father's lack of respect for court orders and his lack of insightinto his conduct and emotional issues and their effect on the children. In our view, the evidencewas sufficient to establish exceptional circumstances, and we discern no abuse of Family Court'sdiscretion in determining that visitation with the father would be inimical to the children'swell-being (see Weiss v Weiss, 52 NY2d 170, 175 [1981]; Matter of Newton v Simons, 52 AD3d895, 896[*3][2008]; Matter of Beverly v Bredice,299 AD2d 747, 748 [2002]).[FN2]
We have examined the father's remaining contentions and find them to be without merit.
Peters, P.J., Malone Jr., Kavanagh and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: In fact, the proper procedurewould have been for the father to move to vacate the default judgment (see e.g. Matter of Taylor v Staples, 33AD3d 1089, 1090 [2006], lv dismissed and denied 8 NY3d 830 [2007]). In thatregard, we note that Family Court considered the father's excuse for missing the hearing on themother's petition and found it to be unworthy of belief. In any event, inasmuch as Family Courtentertained the father's petition, we will review that court's determination.
Footnote 2: While not dispositive, we notethat the attorney for the children is in accord with Family Court's determination (see Matter of Nicole K. [Melissa K.],85 AD3d 1231, 1233 [2011]).