| Matter of Kristi L.T. v Andrew R.V. |
| 2008 NY Slip Op 00933 [48 AD3d 1202] |
| February 1, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Kristi L.T., Respondent, v Andrew R.V.,Appellant. |
—[*1] Richard N. Bach, Utica, for petitioner-respondent. Susan B. Marris, Law Guardian, Manlius, for Jocelyn R.V.
Appeal from an order of the Family Court, Oneida County (Randal B. Caldwell, J.), enteredFebruary 27, 2007 in a proceeding pursuant to Family Court Act article 6. The order, amongother things, modified a prior custody order.
It is hereby ordered that the order so appealed from is unanimously reversed in the exerciseof discretion without costs and the petition is denied.
Memorandum: Respondent father appeals from an order entered in February 2007 thatgranted the mother's petition to modify a prior order by awarding the mother primary physicalcustody of the parties' daughter, who was born in December 2000. At least two other judges hadpreviously entered custody orders in the matter. In our view, Family Court improvidentlyexercised its discretion in determining that a change of primary physical custody was in thechild's best interests.
The parties were never married, and they separated when the child was approximately fourmonths old, at which time the mother and child moved in with the mother's parents. In March2004 the mother sought modification of a prior custody order and was permitted to move withthe child and her parents to Connecticut, with monthly visitation to the father. In August 2004 themother was convicted of driving while intoxicated in Connecticut and received a four-month jailsentence because of her history of such charges. The parties arranged for the father to takephysical custody of the child at the end of October 2004, and the parties entered into a stipulationin Supreme Court continuing joint custody and giving the father primary physical custody. ASupreme Court order continuing that arrangement and specifying the terms of visitation to themother was entered at the beginning of September 2005. The father has had primary physicalcustody of the child since the end of October 2004.
At issue in this appeal is the order granting the mother's petition in July 2006 seekingprimary physical custody of the child. Family Court issued a decision in January 2007 and anorder in February 2007 granting the petition following three days of testimony in November[*2]2006, and a justice of this Court reinstated the September2005 order and stayed enforcement of the February 2007 order pending determination of thisappeal or until December 31, 2007, whichever occurred first.
In granting the mother's petition, the court concluded that there had been a change ofcircumstances and that a change in custody was warranted in the best interests of the child,relying on the five factors set forth in our decision in Matter of Maher v Maher (1 AD3d 987, 989 [2003]). Although weagree with the court that there was a significant change in circumstances inasmuch as the motherhad completed her jail sentence and mandatory programs, had stopped drinking, was livinghappily with a man and his two children, and was engaged to be married to that man in July2007, we conclude that the court's determination that it was in the best interests of the child tochange her primary physical residence was an improvident exercise of discretion.
As we wrote in Maher, among the factors to consider in determining whether achange of primary physical custody is warranted " 'are the quality of the home environment andthe parental guidance the custodial parent provides for the child . . . , the ability ofeach parent to provide for the child's emotional and intellectual development . . . ,the financial status and ability of each parent to provide for the child . . . , therelative fitness of the respective parents, and the length of time the present custody arrangementhas been in effect' " (id. at 989). Here, with respect to the five factors set forth inMaher, the evidence presented at the hearing established that the father had been livingwith his girlfriend, whom he intends to marry, and with their daughter, his girlfriend's daughter,and the subject child. At the time of the hearing, the child was attending kindergarten and schoolreports showed that after 10 weeks of school her attitude, behavior, participation and work habitswere all positive, and her social development, motor skills, knowledge of personal information,and math and language skills were all rated "competently developed." The evidence furtherestablished that the child loves both parents, enjoys visitation with her mother, and iscomfortable with the other members of both households.
With respect to the first factor set forth in Maher, we note that both homes offera suitable environment and both parents can provide parental guidance. With respect to thesecond factor, there is nothing in the record that supports differentiating between the parents withrespect to emotional and intellectual development. There is, however, a marked difference withrespect to the third factor, the financial ability of each parent to provide for the child. The father'ssalary is modest, but it is more than three times that of the mother. The mother is financiallydependent on her fiancé, whose net income as owner of a construction business is morethan double that of the father. The mother admitted at the hearing, however, that she had givenno thought to how she would support the child if something were to happen to her fiancéor to their relationship. She stated, "I never thought about the future. I just think of now."With respect to the fourth factor, the relative fitness of the respective parents, the motherinsists that she is not an alcoholic, although she has been charged with driving while intoxicatedseveral times and was convicted of that crime in Connecticut. She testified that she drinks "likeeverybody else" but last drank alcohol in October 2004. She attended some AlcoholicsAnonymous meetings but did not like them, concluding that "I do much better off on my owndealing, doing things my own way, doing it the way I only know how to do things." The mother'sfiancé testified that he has two convictions arising from conduct involving breach of thepeace, and that he was convicted of violating an order of protection and of possession of drugparaphernalia. He further testified that the drug charge stemmed from an employee's having leftdrug paraphernalia in his vehicle. Neither the father nor his girlfriend has a criminal record, andwe thus conclude that the record establishes that the father is the more fit parent.[*3]
The fifth factor concerns the length of time the presentcustody arrangement has been in effect. The father has had primary physical custody since theend of October 2004, while the mother had primary physical custody from approximately March2001 until the end of October 2004. Thus, the child has lived with each parent approximately halfof her life, and she has had regular visitation with the other parent except during the period inwhich the mother was in jail.
Based on our analysis of the five factors in Maher, and given that the child hasexpressed positive feelings about all the members of both parents' households, has friends in bothcommunities and was doing well in school at the time of the hearing, we cannot agree with thecourt that the best interests of the child would be served by a change in her primary physicalresidence. Thus, in the exercise of our discretion, we reverse the order and deny the petition.
We note that the record establishes that the parties have had proceedings before at least threedifferent judges. The same Law Guardian was appointed for the child in the first two matters butwas not reappointed by Family Court in this matter because the mother objected to hisappointment. The court recognized, however, that in appointing a law guardian "the court shall,to the extent practicable and appropriate, appoint the same law guardian who has previouslyrepresented the child" (Family Ct Act § 249 [b]). The record establishes that the prior LawGuardian was available, and we conclude that he should have been reappointed.
We do not address the parties' contentions with respect to relocation because in our viewrelocation is not in issue. Present—Hurlbutt, J.P., Martoche, Smith, Peradotto and Pine, JJ.