| Matter of Deyo v Bagnato |
| 2013 NY Slip Op 04854 [107 AD3d 1317] |
| June 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of Lydia C. Deyo, Appellant, v Richard P.Bagnato, Respondent. (And Four Other RelatedProceedings.) |
—[*1] Justin C. Brusgul, Voorheesville, for respondent. Sandra J. McCarthy, Wyantskill, Attorney for the Child.
Stein, J. Appeal from an order of the Family Court of Albany County (Maney, J.),entered December 20, 2011, which, among other things, partially granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior orderof custody.
Pursuant to a May 2009 consent order, petitioner (hereinafter the mother) andrespondent (hereinafter the father) share joint legal and physical custody of their daughter(born in 2006). The child resides with the mother each week from Sunday at 12:00 p.m.until Wednesday at 4:00 p.m. and with the father the remaining time. Approximately oneyear after the consent order was issued, the mother filed two modification petitionsseeking, among other things, sole legal and physical custody of the child based upon, aspertinent here, an incident at the child's dance recital, the father's arrest for driving whileintoxicated and aggravated unauthorized operation of a motor vehicle and the generallyescalating animosity between the parties. The father thereafter filed two modificationpetitions, also seeking sole legal and physical custody, as well as a petition alleging thatthe mother violated the May 2009 custody order by changing the child's physicianwithout his consent or the court's prior approval. Following a trial, Family Court found asufficient change in circumstances to warrant a modification of the previous order andpartially granted the mother's second modification petition [*2]by ordering, among other things, that the parties havemodified joint legal custody of the child, with the mother having final decision-makingauthority with regard to the child's education and the father having final decision-makingauthority over matters concerning the child's health. The court continued the terms of theprior order with respect to the schedule of parenting time.[FN1]The mother now appeals.
We modify. It is axiomatic that, where a voluntary custodial arrangement exists, itwill not be altered absent a sufficient change in circumstances necessitating amodification in order to meet the best interests of the child (see Matter of Youngs v Olsen,106 AD3d 1161, 1163 [2013]; Nolan v Nolan, 104 AD3d 1102, 1104 [2013]; Matter of Rosi v Moon, 84AD3d 1445, 1445 [2011]). We have found the existence of such a change incircumstances "where the relationship between joint custodial parents has so deterioratedas to make cooperation for the good of the child[ ] impossible" (Nolan v Nolan,104 AD3d at 1103-1104 [internal quotation marks and citations omitted]; see Matter of Michael GG. vMelissa HH., 97 AD3d 993 [2012]; Matter of Coley v Sylva, 95 AD3d 1461, 1462 [2012]; Matter of Henderson vMacCarrick, 74 AD3d 1437, 1440 [2010]; Matter of Ferguson v Whible, 55 AD3d 988, 990 [2008]).While we accord deference to Family Court's credibility assessments (see Matter of Darrow vDarrow, 106 AD3d 1388, 1392 [2013]), a custody determination that is notsupported by a sound and substantial basis in the record must be modified (see Matter of King v Barnes,100 AD3d 1209 [2012]; Matter of Memole v Memole, 63 AD3d 1324, 1327[2009]).
Here, Family Court rendered a lengthy and thorough decision. However, while thatcourt found that a sufficient change in circumstances existed by virtue of the escalationof the parties' level of conflict, rendering parenting issues "more complicated," and notedthat the parties were unable or unwilling to alter the pattern of their hostility to protectthe child therefrom, the court made only minor modifications to the custodialarrangement which, in our view, did not appropriately recognize that the level ofacrimony between the parties had escalated to a point where joint legal custody isunfeasible. Since the May 2009 order, the parties have disagreed on almost everysignificant aspect of the child's life, including what doctor would treat the child, whereshe would attend preschool and what extracurricular activities she would participate in.The parties demonstrated their inability to effectively interact with each other using themost traditional means of communication—email, telephone and textmessages—and the court-implemented use of a notebook exchanged between theparties was unsuccessful. The escalation of their acrimony was particularly evident by adispute that arose out of the child's participation in a dance recital. After the motherconfessed to the father that she had lied to him about this event—which wasscheduled to occur on two evenings during the father's custodial time—the fatherdecided that the child would not attend. Although the child missed the first night of therecital, the father agreed to bring her to the second performance. However, when hearrived with the child, an altercation occurred between him and themother—during which the father called the mother a "f . . . ing crackwhore" in the child's presence—which led to police intervention.
With few exceptions, the parties are unable to collectively make decisionsconcerning the child without conflict, and their acrimony has undoubtedly beendetrimental to the child's [*3]well-being. Exchanges ofthe child have generally led to discord unless the paternal grandmother has intervened,and most of the parties' communications are heated and volatile. Inasmuch as the partiescannot effectively communicate or cooperate with each other, we conclude that jointlegal custody—even in its modified form as directed by Family Court—isnot a feasible option for them (see Matter of Youngs v Olsen, 106 AD3d at 1163;Matter of Greene vRobarge, 104 AD3d 1073, 1075 [2013]; Matter of Mahoney v Regan, 100 AD3d 1237, 1237[2012], lv denied 20 NY3d 859 [2013]; Matter of Spiewak v Ackerman, 88 AD3d 1191, 1192[2011]).
Accordingly, it is necessary to determine what custodial arrangement is in the child'sbest interests (see Matter ofMelody M. v Robert M., 103 AD3d 932, 933 [2013]). In fashioning anappropriate arrangement, we note that neither party has been a model parent and each hashis or her own considerable shortcomings. Significantly, however, the record establishesthat the father's decision-making ability has been seriously compromised by his animositytowards the mother, as demonstrated by his refusal to allow the child to attend one of herdance recitals. Notably, the father also refused to change the child's currentphysician—who was not a pediatrician—despite this physician'srecommendation that the child be treated by a pediatrician.[FN2]In addition, the father has repeatedly discussed inappropriate subjects and disparaged themother in front of the child and refuses to participate in co-parenting counseling with themother.
While we do not condone some of the mother's conduct toward the father or herdisregard of a court order on at least one occasion, inasmuch as the father hasdemonstrated his inability to place the child's needs ahead of his contempt for the mother,we conclude that the child's interests would be best served by awarding sole legalcustody to the mother. Therefore, we reverse so much of Family Court's order thatgranted the parties modified joint legal custody and granted the father decision-makingauthority over all major health-related decisions affecting the child.
Nonetheless, we see no reason why the father should not continue to haveunrestricted access to all of the child's medical and educational records. To that end, themother shall keep the father promptly informed regarding all significant mattersconcerning the child including, but not limited to, the child's health, education andextracurricular activities, and the father shall be permitted to attend all appointments,meetings and activities regarding the child. Further, the mother shall not unreasonablyschedule such appointments or activities during the father's parenting time. In addition, ifa medical emergency arises while the child is in the father's care, he shall arrange for hermedical care and immediately inform the mother of the details of that emergency.
Turning to the mother's application for primary physical custody, we reject herchallenge to that part of Family Court's order that continued the existing parentingschedule. That schedule reflects that the child has a loving relationship with both partiesand, although not determinative, we note that the Attorney for the Child advocates for acontinuation thereof. Neither parent is especially well-suited to undertake sole physicalcustody and, as Family Court found, there was no evidence that the residentialarrangement was not meeting the child's needs at the time of trial. Thus, inasmuch asFamily Court's order denying the mother's petition for [*4]primary physical custody was supported by a sound andsubstantial basis in the record, we will not disturb it (see Matter of Gordon v Richards, 103 AD3d 929, 930-931[2013]).
Peters, P.J., Lahtinen and Egan Jr., JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as (1) awarded the parties modifiedjoint legal custody of the child, (2) granted respondent decision-making authority over allmajor health-related decisions regarding the child, (3) ordered that decisions regardingextracurricular activities for the child be jointly made by the parties, and (4) ordered thatany other issues not specifically addressed would be decided jointly by the parents;petitioner is awarded sole legal custody of the child; and, as so modified, affirmed.
Footnote 1: Family Court dismissedthe mother's first modification petition as moot and denied the father's modification andviolation petitions.
Footnote 2: In our view, this rendersFamily Court's award to the father of medical decision-making authority particularlytroublesome.