| Matter of Kilmartin v Kilmartin |
| 2007 NY Slip Op 07778 [44 AD3d 1099] |
| October 18, 2007 |
| Appellate Division, Third Department |
| In the Matter of Annette L. Kilmartin, Appellant, v Andreas E.Kilmartin, Respondent. |
—[*1] Robert J. Krzys, Amsterdam, for respondent. Ellen S. Ross, Law Guardian, Johnstown.
Spain, J. Appeal from an order of the Family Court of Fulton County (Jung, J.), enteredAugust 12, 2005, which, among other things, dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner and respondent were married in 1996 and are the parents of a son (born in 1994)and a daughter (born in 1995) (hereinafter the children). Petitioner also has a daughter who wasborn in 1991, about six months prior to the start of the parties' relationship. In June 2001, theparties appeared in Family Court and stipulated to the modification of an existing custody andvisitation order by consenting to joint legal custody of the children. Petitioner had physicalcustody weekly from Monday at 3:00 p.m. through Wednesday at 8:00 p.m. and every otherSunday from noon to 8:00 p.m., and respondent was given physical custody of the children forthe remainder of the week.[FN*] Such terms, however, were not followed by the parties for any [*2]significant period of time, as they reconciled and resumed livingtogether with all three children.
On December 30, 2004, after the parties again separated, petitioner commenced twoproceedings, pursuant to Family Ct Act articles 6 and 8, seeking to modify the 2001 order ofcustody, requesting sole custody of the children and, alleging violence in the home, seeking anorder of protection. Respondent sought dismissal of the petitions, denying all allegations ofviolence, and requested sole or joint custody. After a lengthy hearing during which Family Courtmet with the children and their Law Guardian in camera, the court dismissed the family offensepetition as unfounded. In a separate order the court denied petitioner's request for sole custodyand awarded respondent, among other things, sole legal custody with weekly parenting time fromThursday at 5:00 p.m. through Monday at 7:00 a.m. Petitioner was granted, among other things,weekly parenting time for the remainder of the week (Mondays from 7:00 a.m. throughThursdays at 5:00 p.m.). Petitioner now appeals only from the custody order.
"The primary concern in any child custody case is the best interest of the child" (Matter of Goodfriend vDevletsah-Goodfriend, 29 AD3d 1041, 1042 [2006] [citations omitted]; seeEschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of De Hamel v Porto, 22 AD3d 893, 894 [2005]).Modification of an existing custody order "must be supported by a showing of a [sufficient]change in circumstances revealing a real need for the modification to ensure the ongoing bestinterests of the children" (Redder vRedder, 17 AD3d 10, 12-13 [2005]; see Matter of Crippen v Keator, 9 AD3d 535, 536 [2004]). Theparties' 2001 custody arrangement to which they stipulated is a factor to be considered in thisanalysis, although it is entitled to less weight than a custody order that resulted from a plenaryhearing (see Redder v Redder, 17 AD3d at 13; Matter of Crippen v Keator, 9AD3d at 536).
Here, the parties' 2001 stipulated joint custodial arrangement was effectively abandonedwhen, within a short time, they resumed living together as a family with the three children for atleast 2½ years. Given the substantial period of time that both parents resided together withthe children following their consent to that prior custody order, we find a sufficient change incircumstances to justify a modification and reconsideration of the previous joint legal custodyorder (see Redder v Redder, 17 AD3d at 13). Further, the proof regarding the pronounceddeterioration of the parties' relationship to a point where they were antagonistic and embattled,unable to cooperate and communicate effectively or amicably for the sake of their children'swelfare, also presents a sufficient change in circumstances (see Matter of Pecore v Pecore, 34 AD3d 1100, 1101 [2006]; see also Matter of Adams v Franklin, 9AD3d 544, 545 [2004]).
When viewed in its totality, the record presents a mosaic of disturbing and conflictingcross-accusations, from which emerges the conclusion that the parties were embattled andincapable of acting in harmony with respect to their children. Further, due to their unwillingnessto deal with one another in a civil fashion for even brief periods of time, the parties have had toresort to relying on the assistance of a third party to transfer the children between them. Theyeach concede that a joint custodial arrangement is unworkable. Family Court agreed, finding thatthe parties' relationship was so acrimonious and embattled that an award of sole legal custodywas necessary, and that conclusion is amply supported in the record (see Matter of Eck v Eck, 33 AD3d1082, 1083 [2006]).
In determining the children's best interests, a court must view all of the circumstances whileconsidering certain factors, including maintaining stability for the children, the children's wishes,the home environment with each parent, each parent's past performance and relative [*3]fitness, each parent's ability to guide and provide for the children'soverall well-being and the willingness of each to foster a positive relationship between thechildren and the other parent (see id.; Matter of Smith v Miller, 4 AD3d 697, 698 [2004]). Indeed, theeffect of any alleged domestic violence upon the children is a factor that must be considered,among others, in custody cases (see Domestic Relations Law § 240 [1] [a]; Matter of Lopez v Robinson, 25 AD3d1034, 1037 [2006]; see also Matter of Wissink v Wissink, 301 AD2d 36, 39 [2002]).
While it appears from the record that both parties have considerable personal flaws asspouses and use vulgarities in the presence of the children, they are generally kind, loving andstable parents who are loved by the children. Neither party is physically violent with the childrenbeyond an occasional disciplinary spanking on the buttocks, and each party provides a suitableand clean home for the children and prepares appropriate meals for them. Neither party lives in alocation which would force the children to change schools and both are familiar with theirchildren's education and schedules, play board games with them, assist them with homework andwatch age appropriate movies and programs with them. Additionally, the record reflects that bothparties are aware of their children's medical requirements and administer needed medications tothem properly.
Notably, although Family Court dismissed the family offense petition (which petitioner hasnot appealed), domestic violence throughout the course of their relationship was reported by bothparties. Respondent acknowledged that he sometimes has difficulty controlling his temper andthat he voluntarily attended counseling for such difficulties in 2002. The record also reveals thatpetitioner frequently loses her temper, uses vulgarity and screams at the children whensupervising them and that she had prevented her other daughter, despite her close relationshipwith respondent, from contacting respondent. The court took the behavior of both parties intoconsideration in assessing the impact of any domestic violence on the children who were presentduring many of their heated confrontations (see Domestic Relations Law § 240 [1][a]; Matter of Wissink v Wissink, 301 AD2d at 39-40).
As to the ability of each parent to foster a good relationship between the children and theother parent, petitioner has limited the children's access to respondent by phone and hasscheduled programs for them in such a manner as to disrupt respondent's parenting time withthem. In contrast, respondent stated that he had no objection to the children residing withpetitioner part of the week, and that he is willing to work with petitioner for the benefit of thechildren.
Finally, Family Court credited testimony by others that the children appear more calm whenthey are with respondent, that they are more attentive and responsive to directions given by him,that they have greater respect for him and that he exhibits a positive consistency with regard toparental decision-making. In our view, Family Court's order, including its schedule of parentalaccess, is supported by a sound and substantial basis in the record and represents a principledattempt at devising a plan that will avoid the intensive stresses and pressures that the childrenhave faced in the past (see Matter ofLeach v Santiago, 20 AD3d 715, 716 [2005], lv denied 6 NY3d 702 [2005]; Matter of Collins v Brush, 17 AD3d726, 728 [2005]; Matter of Scialdov Kernan, 14 AD3d 813, 814 [2005]).
Petitioner also contends that she was denied the effective assistance of counsel (seeFamily Ct Act §§ 261, 262; Matter of Thompson v Gibeault, 305 AD2d 873,875 [2003]). Here, petitioner's counsel called several witnesses during her case-in-chief for thepurpose of [*4]corroborating her lengthy testimony, maderelevant objections, called appropriate witnesses, vigorously cross-examined respondent'switnesses, made appropriate motions, and put forth a proper opening statement and summation.The record supports the conclusion that petitioner received meaningful representation (seeMatter of Thompson v Gibeault, 305 AD2d at 875; Matter of Jonathan LL., 294AD2d 752, 753 [2002]; Matter of James HH., 234 AD2d 783, 785 [1996], lvdenied 89 NY2d 812 [1997]).
Petitioner further claims that counsel was ineffective in failing to make a written motion todisqualify respondent's counsel from the case due to petitioner's allegation that he had previouslyrepresented both parties. After respondent's counsel admitted in court that he had represented theparties in the past, including on a neglect petition, petitioner's counsel made an oral motion fordisqualification, which was opposed by respondent. Family Court ultimately determined that awritten motion placing respondent's counsel on notice with regard to the specific conflictallegations was required. Counsel for petitioner, however, never made such motion and petitionernow claims that such a failure to pursue disqualification constituted the ineffective assistance ofcounsel. While respondent's counsel is noted as having successfully represented both respondentand petitioner as appellate counsel before this Court with regard to a neglect proceedinginvolving all three children in the past (see Matter of Cassandra M., 260 AD2d 961, 961[1999]), no proof has been proffered by petitioner establishing that the matters involved in bothrepresentations are adverse or substantially related (see Solow v Grace & Co., 83 NY2d303, 308 [1994]; McDade v McDade, 240 AD2d 1010 [1997]; cf. R.M. Buck Constr.Corp. v Village of Sherburne, 292 AD2d 36, 39 [2002]). Her allegation that counsel's failureto file a written motion seeking disqualification was an error—as opposed to a strategicdecision made by counsel not to pursue the matter—is speculative (see Matter of Brenden O., 20 AD3d722, 723 [2005]; Matter of Baker v Baker, 283 AD2d 730, 731 [2001], lvdenied 96 NY2d 720 [2001]). Further, petitioner has not demonstrated any actual prejudicearising from counsel's failure to file a written disqualification motion (see Matter of Yette v Yette, 39 AD3d952, 954 [2007], lv denied 9 NY3d 802 [2007]; Matter of Michael DD., 33 AD3d 1185, 1187 [2006]). As petitionerhas not met her burden, we find her assertions to be without merit.
We are similarly unpersuaded by petitioner's remaining contentions.
Mercure, J.P., Peters, Carpinello and Mugglin, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The resulting order was notreduced to writing and signed by Family Court until October 5, 2001.