| Matter of Martin v Martin |
| 2007 NY Slip Op 09485 [45 AD3d 1244] |
| November 29, 2007 |
| Appellate Division, Third Department |
| In the Matter of John T. Martin, Respondent, v Star L. Martin,Appellant. (And Two Other Related Proceedings.) |
—[*1] Pechenik & Curro, P.C., Troy (Kelly M. Curro of counsel), for respondent. Leslie Richards Ortiz, Law Guardian, Troy.
Carpinello, J. Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.),entered January 6, 2006, which, among other things, granted petitioner's application, in threeproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
By an order entered on consent in November 2002, these divorced parties were awarded jointlegal custody of their two sons with physical custody to respondent (hereinafter the mother) andvisitation to petitioner (hereinafter the father). In August 2004, amid controversy over visitation,communication about the boys' health and education and an inability to communicate generally,the father filed two petitions, one alleging a violation of the prior order and another seekingmodification of custody. The mother filed a cross petition also seeking a modification of custody.Following fact-finding and Lincoln hearings, Family Court found that the fathersustained his violation petition and modified the prior order by granting him sole legal andphysical custody. The mother appeals.
"An existing custody arrangement may be modified upon a showing that there has been asubsequent change of circumstances and modification is required to ensure the best interests of[*2]the children" (Matter of Laware v Baldwin, 42 AD3d 696, 696 [2007] [internalquotation marks and citation omitted]). In determining the best interests of the children, theprimary consideration here (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]),numerous relevant factors are considered, including the "quality of the respective homeenvironments and each parent's past performance, stability, fitness and ability to guide andprovide for the child's development" (Matter of Roe v Roe, 33 AD3d 1152, 1153 [2006]; see Matter of Lopez v Robinson, 25AD3d 1034, 1035 [2006]). While a prior custodial arrangement is a consideration, lessweight will be accorded to an order entered on consent than an order issued after a full hearing(see Eschbach v Eschbach, 56 NY2d at 172; Matter of Roe v Roe, supra;Matter of Lopez v Robinson, supra). Upon our review of the record, and according greatdeference to Family Court's assessment of credibility (see e.g. Matter of Robinson v Cleveland, 42 AD3d 708, 710[2007]; Matter of Lopez v Robinson, supra; Matter of St. Pierre v Burrows, 14 AD3d 889, 890 n [2005]), wefind that its decision to grant the father sole legal and primary physical custody of the childrenhas a sound and substantial basis in the record promoting their best interests (see Matter ofRoe v Roe, supra).
With respect to the precise decision to terminate the joint custodial arrangement, the recordoverwhelmingly establishes that these parents are unable to communicate on any level in amature fashion, despite coparenting counseling sessions following the prior consent order(see Matter of St. Pierre v Burrows, 14 AD3d at 891). Indeed, the mother herselfappropriately describes their relationship as "abysmal." She nevertheless denounces the decisionto modify custody from joint to sole on the ground that the record fails to establish the extent towhich their relationship deteriorated since the prior order. In other words, according to themother, because there is no way of knowing if they were "more antagonistic" as of the hearingthan they had been in the past, the change in custody was improper. Charitably stated, we areunpersuaded. The mother's own testimony is telling on this very issue.
Significantly, the mother testified that the parties' level of conflict as of the hearing wasgreater than they experienced "even during [their] marriage" and repeatedly testified that therehad been "heightened" and "a lot more" conflict between them over the previous 14-monthperiod such that "[e]very single little nit picking thing [was] becoming a court issue." Accordingto her testimony, the parties are unable to get along with each other, unable to tolerate eachother's presence and are involved in "constant explosions." Moreover, again according to themother, "every attempt . . . to give [the father] information turns into a conflictsituation" and that, "because of the level of conflict," it is better for them to attend separateteacher conferences and avoid "face-to-face" contact.
In addition to the mother's testimony about the nature of the parties' relationship, the recordreveals that during the time period following the prior order, the mother had only sporadictelephone and/or computer services thus preventing any consistent communication with thefather in the first instance. More importantly, since the prior order and despite their joint custodystatus, the mother withheld important information about the children from the father, includingthe older child's evaluation with a psychologist and the younger child's trouble in kindergartenwhich necessitated various school meetings to address and which ultimately led to him repeatingthat grade. She also made major unilateral decisions about the children without consulting thefather, such as giving the school permission to hold their younger son back for another year andputting their older son on Ritalin to treat attention deficit disorder despite the father's objection todoing so without first exhausting other treatment options (see Matter of Scialdo v Kernan, 14 AD3d 813, 814-815 [2005]).Additionally, subsequent to that prior order, the parties' animosity [*3]toward each other was so great that each found it necessary toinvoke intervention by police and the local social services agency concerning relatively minorspats. In sum, we are indeed satisfied that a sufficient change in circumstances was demonstratedwarranting a modification of custody from joint to sole in order to promote the best interests oftheir children (see e.g. Matter of Roe v Roe, 33 AD3d at 1154-1155; Matter ofScialdo v Kernan, supra).
As to Family Court's decision to grant the father sole custody instead of the mother, the courtappropriately considered each parent's respective strengths and weaknesses but ultimately ruledthat the facts tipped in favor of the father (compare Matter of St. Pierre v Burrows,supra). We again find that this determination has a sound and substantial basis in the recordpromoting the children's best interests. In addition to withholding information from the father andmaking unilateral decisions concerning the children, the mother made insufficient efforts topermit the father to care for the children while they were sick, to provide the father withadditional visitation as contemplated in the consent order and to provide the children with astable home environment. In short, despite his own parental weaknesses, the father proved to bethe more appropriate custodial parent for these boys (see Matter of Roe v Roe, supra;Matter of St. Pierre v Burrows, supra; Matter of Scialdo v Kernan, supra).
Cardona, P.J., Crew III, Peters and Spain, JJ., concur. Ordered that the order is affirmed,without costs.