| Matter of Nephew v Nephew |
| 2007 NY Slip Op 09455 [45 AD3d 1194] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of Matthew C. Nephew, Respondent, v Kimberly A.Nephew, Appellant. |
—[*1] Bartlett, Pontiff, Stewart & Rhodes, P.C., Glens Falls (Paula Nadeau Berube of counsel), forrespondent. Lynne E. Ackner, Law Guardian, Glens Falls.
Mugglin, J. Appeal from an order of the Family Court of Warren County (Breen, J.), enteredJune 14, 2006, which granted petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, to modify a prior order of custody.
Petitioner is the father and respondent is the mother of a son (born in 2001). In February2003, they executed a separation agreement, later incorporated in a judgment of divorce, whichprovided for joint legal custody, with primary physical custody being with respondent. InNovember 2004, petitioner commenced this proceeding seeking modification of the custodyorder. Petitioner sought, and was granted, temporary custody. Following the April 2006 trial,Family Court, while continuing joint custody, modified the prior order by awarding primaryphysical custody of the child to petitioner, subject to scheduled visitation for respondent.Respondent appeals, arguing both that petitioner failed to establish a change of circumstancessufficient to warrant modification of the prior order and that awarding primary physical custodyto petitioner is not in the child's best interests. We disagree with both assertions and affirm.
While a previously stipulated arrangement will be accorded less weight than a decisionrendered by a court following a plenary trial (see Matter of Mehaffy v Mehaffy, 23 AD3d 935, [*2]936 [2005], lv dismissed 6 NY3d 807 [2006]), a parentseeking modification of an existing custody order always bears the burden of proving that therehas been a sufficient change of circumstances " 'making modification necessary for the continuedbest interests of [the] child' " (Matter ofLeo v Leo, 39 AD3d 899, 900-901 [2007], quoting Matter of Roe v Roe, 33 AD3d 1152, 1153 [2006]; see Matter of Goodfriend vDevletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]).
Petitioner's evidence established that since the prior custody order, respondent was arrestedfor a second driving while intoxicated offense in November 2004, she was hospitalized for a drugoverdose, she admitted herself to a recovery program and she started attending AlcoholicsAnonymous meetings. She also became involved in a drug court treatment program during whichshe tested positive for cocaine use and was sent to a residential treatment facility for six months.Upon her discharge, she resided at a half-way house and continued to attend outpatientrehabilitation care to focus on maintaining sobriety which, by her own admission, was the mostimportant priority in her life, even above her concerns for her child. Beyond question, petitionerhas established changed circumstances.
Further, the record fully supports Family Court's determination that the child's best interestsrequired granting petitioner primary physical custody. Family Court considered all relevantfactors presented in reaching this determination (see Eschbach v Eschbach, 56 NY2d167, 171-172 [1982]). Throughout the entirety of the lengthy pendency of this matter, petitionerhas demonstrated his capacity to address the physical and emotional needs of the child and toprovide a stable home environment. While in petitioner's care, the child's placement in therapyhas advanced his intellectual development, overcoming in large measure significant speechdifficulties. Additionally, petitioner's flexible work schedule allows him to commit significantblocks of time to the child so that the child may participate in family and age-appropriatecommunity activities, such as soccer. Lastly, petitioner provides the child with his own bedroomand he has formulated a schedule which has overcome the child's previously experiencedsleeping problems. According due deference to Family Court's factual findings and its resolutionof credibility issues, we find a substantial basis exists in the record to support the conclusion thatmodification of custody is in the child's best interests (see Matter of Eck v Eck, 33 AD3d 1082, 1083 [2006]; Matter of Graham v Graham, 24 AD3d1051, 1052 [2005], lv denied 6 NY3d 711 [2006]).
Mercure, J.P., Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs.