| Matter of Tod ZZ. v Paula ZZ. |
| 2014 NY Slip Op 00549 [113 AD3d 1005] |
| January 30, 2014 |
| Appellate Division, Third Department |
| In the Matter of Tod ZZ., Respondent, v Paula ZZ.,Appellant. (And Five Other Related Proceedings.) |
—[*1] Emily Karr Cook, Elmira, for respondent. Connie Fern Miller, Watkins Glen, attorney for the children.
McCarthy, J. Appeal from an order of the Family Court of Schuyler County(Connerton, J.), entered June 17, 2012, which, among other things, granted petitioner'sapplications, in two proceedings pursuant to Family Court Act article 6, to modify a priororder of custody and visitation.
Respondent (hereinafter the mother) is the mother of both of the children in thisproceeding (born in 1997 and 2008) and petitioner (hereinafter the father) is thebiological father of the younger child. In January 2010, the parties, who are married butseparated, consented to joint legal custody of the children, with physical custody to themother and visitation to the father. In May 2011, after the mother consented to a findingof neglect of both children under an adjournment in contemplation of dismissal, jointphysical custody of the older child was ordered, with each party having custody onalternating weeks.[FN*]Joint legal custody of the children was continued and physical custody of the youngerchild remained with the mother, with visitation to [*2]thefather.
The father subsequently filed two modification petitions, seeking sole custody of thechildren, and Family Court entered a temporary order in September 2011 granting thefather physical custody of both children, with visitation to the mother. Thereafter, thefather filed a violation petition alleging that the mother had violated the temporary order.The mother also filed two petitions seeking modification of the temporary order and afamily offense petition alleging harassment by the father. Following a fact-findinghearing and a Lincoln hearing with the older child, Family Court granted thefather's modification petitions, awarding him custody of the children with liberalvisitation to the mother, and dismissed the remaining petitions. The mother appeals.
"An alteration of an established custody arrangement requires a showing of a changein circumstances reflecting a real need for change in order to insure the continued bestinterest[s] of the child[ren]" (Matter of Henderson v MacCarrick, 74 AD3d 1437, 1439[2010] [internal quotation marks and citations omitted]; accord Matter of Rikard vMatson, 80 AD3d 968, 969 [2011], lv denied 16 NY3d 709 [2011]). "Indetermining whether a modification will serve the best interests of the children, factors tobe considered include maintaining stability in the children's lives, the quality of therespective home environments, the length of time the present custody arrangement hasbeen in place and each parent's past performance, relative fitness and ability to providefor and guide the children's intellectual and emotional development" (Matter of Siler v Wright, 64AD3d 926, 928 [2009] [citations omitted]; accord Matter of Bush v Bush, 74 AD3d 1448, 1449[2010], lv denied 15 NY3d 711 [2010]).
Initially, contrary to the mother's contention, inasmuch as the father's pro sepleadings are to be liberally construed (see Family Ct Act § 165 [a]; CPLR3026; Matter of Lagano vSoule, 86 AD3d 665, 666 [2011]), we find that he alleged facts sufficient toconstitute a change in circumstances since the prior order to warrant a fact-findinghearing (see Matter of Whitakerv Murray, 50 AD3d 1185, 1186 [2008]). Further, the record supports FamilyCourt's finding that the parties are unable to effectively communicate and work togetheras joint custodial parents for the sake of the children. They admittedly do not effectivelydiscuss the children's needs, and each party blames the other for the failure incommunication. Notably, both parties were in criminal court the day before thefact-finding hearing regarding criminal charges of harassment that the parties had filedagainst each other. Accordingly, we agree with Family Court's determination that thebreakdown in communication between the parties demonstrated a change incircumstances requiring consideration of the children's best interests (see Matter ofRikard v Matson, 80 AD3d at 969-970; Matter of Ferguson v Whible, 55 AD3d 988, 990 [2008]).
The record also amply supports Family Court's finding that the best interests of thechildren will be served by granting custody to the father. While in the custody of themother, the older child, who is a special needs student, struggled in school. He wasdescribed in his file as a behavioral problem, being aggressive at times, that he wasfrequently absent and that he consistently failed to complete his schoolwork andhomework. While living with the father pursuant to the temporary order, the childenrolled in a different school and his special education teacher testified that he hasexcelled, having an excellent attendance record and completing his schoolwork andhomework on time while earning honor roll status. The father enrolled the younger childin nursery school, something the mother admittedly had not even considered. The recordalso reflects that the mother suffers from mental health issues, which contributed to herbeing found to have neglected the children. Although the neglect finding was adjournedin [*3]contemplation of dismissal in April 2011, with oneof the conditions being that she participate in mental health treatment, she admittedlyfailed to seek treatment and the neglect finding was entered against her. At the time ofthe fact-finding hearing in February 2012, she had only recently sought mental healthtreatment. Under these circumstances, and in light of the fact that the father provides astable home environment and has demonstrated that he is capable of providing for thechildren's needs, we find a sound and substantial basis for Family Court awardingcustody of the children to him (see Matter of Bush v Bush, 104 AD3d 1069, 1072 [2013];Matter of Fish v Fish, 100AD3d 1049, 1049-1050 [2012]).
Peters, P.J., Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: As part of that order,Family Court found extraordinary circumstances to support the application for the father,as a nonparent, to gain custody of the older child.