| Matter of Sherwood v Barrows |
| 2015 NY Slip Op 00256 [124 AD3d 940] |
| January 8, 2015 |
| Appellate Division, Third Department |
[*1]
| In the Matter of Harvey J. Sherwood, Respondent, vDesiree Barrows, Appellant. |
Diane V. Bruns, Ithaca, for appellant.
Abbie Goldbas, Utica, for respondent.
Susan B. McNeil, Ithaca, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Tompkins County(Sherman, J.), entered May 10, 2013, which granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) have onechild in common (born in 2004). An October 2011 order continued joint custody andprimary placement with the mother, and provided for visitation with the father everyweekend. The father filed a modification petition, which he amended twice, seeking solecustody. Following a hearing, Family Court awarded sole custody to the father andprovided visitation to the mother. The mother appeals.
We affirm. A parent seeking modification of a custody order must demonstrate asufficient change in circumstances since the entry of the prior order so as to justify amodification of that order to serve the child's best interests (see Matter of Opalka vSkinner, 81 AD3d 1005, 1005-1006 [2011]; Matter of Siler v Wright, 64 AD3d 926, 928 [2009]).Shortly after the entry of the October 2011 order, the mother and her paramour endedtheir relationship, so she and her children[FN*] moved out of the paramour's residenceand into a friend's home. The mother went to Tennessee for a modeling shoot and left thechildren with her friend for more than two weeks. On that trip, the mother was in a caraccident in Ohio. She returned to New York for [*2]approximately one day to retrieve her children, then headedback to Ohio. During that one day, Family Court issued an order to show causeprohibiting the mother from removing the children from the state. It appears that themother was aware that such an order was being sought and was imminent, but shetestified that she did not become aware that it was actually issued until later that day at atime when she had already left the state. She remained in Ohio for approximately 10 daysthereafter, during which time she got married. A few days after returning to New York,she filed an affidavit indicating her desire to relocate to Ohio with her children, to bewith her new husband. Shortly thereafter, she realized that her marriage was a mistakeand moved back in with her paramour, who—by the time of thehearing—she intended to marry as soon as she obtained a divorce from herhusband. While the mother and child were in Ohio, the child missed his visitation withthe father and almost two weeks of school. This situation constituted a sufficient changein circumstances for the court to reevaluate the custody arrangement.
Both parties testified regarding their poor communication and relationship, callingthe efficacy of joint custody into question (see Matter of Williams v Williams, 66 AD3d 1149,1150-1151 [2009]). The record supports Family Court's determination that the mothercreated instability in the child's living arrangements and schooling, and disregarded thefather's visitation rights. On the other hand, the father had steady employment, hadresided with his family for several years and, although he had a disability that preventedhim from being able to read, he helped the child with math and other projects, and thegrandmother helped the child with reading. Despite some faults on the father's part, heprovided greater stability for the child. Under the circumstances, we will not disturb thecourt's determination awarding the father sole custody (see Matter of Tod ZZ. v PaulaZZ., 113 AD3d 1005, 1006-1007 [2014]; Matter of Wilson v Hendrickson, 88 AD3d 1092,1094-1095 [2011]; Matter ofMeier v Meier, 79 AD3d 1295, 1296 [2010]).
Lahtinen, J.P., Rose, Egan Jr. and Clark, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *:The mother has anotherchild with a different father.