| Matter of Mabie v O'Dell |
| 2008 NY Slip Op 01662 [48 AD3d 988] |
| February 28, 2008 |
| Appellate Division, Third Department |
| In the Matter of Daniel E. Mabie, Petitioner, v Aimee E. O'Dell,Respondent. Robert L. Estes, as Law Guardian, Appellant. |
—[*1] Mitch Kessler, Cohoes, for Aimee E. O'Dell, respondent.
Kane, J. Appeal from an order of the Family Court of Otsego County (Burns, J.), enteredNovember 13, 2006, which dismissed petitioner's application, in a proceeding pursuant to FamilyCt Act article 6, to modify a prior order of custody.
The parties are the parents of two children, a daughter born in 1991 and a son born in 1994.Since their 1995 stipulation, later incorporated into their judgment of divorce, the partiesexercised joint custody, with primary physical residence with respondent and parenting time withpetitioner every other weekend. According to an agreement of the parents, petitioner also hasparenting time each Wednesday evening. In May 2006, petitioner commenced this proceedingseeking shared physical custody, with the children alternating weeks between the parents' homes.Following a hearing, Family Court dismissed the petition. The Law Guardian appeals on thedaughter's behalf.[FN*]We affirm.[*2]
"An existing custody arrangement will not be alteredabsent a showing of changed circumstances demonstrating a real need for a change to ensure thechild's best interest" (Matter of Oddy v Oddy, 296 AD2d 616, 617 [2002] [citationsomitted]; see Matter of Parkhurst vMcFall, 1 AD3d 78, 80 [2003]; Matter of Kelly v Sanseverino, 278 AD2d 535,536 [2000]). Family Court's determination is entitled to great deference, and will be upheldunless it lacks a sound and substantial basis in the record (see Matter of Gravelding v Loper, 42 AD3d 740, 742 [2007];Matter of Meola v Meola, 301 AD2d 1020, 1021 [2003]). Here, the custody arrangementhad been in place for more than 10 years without incident. The court found that both parentscared for the children and provided adequate homes. While the relationship between respondentand the daughter was somewhat strained, the strain was apparently based upon the conflictbetween the then 15-year-old daughter's desire for more freedom, respondent's strict rules andpetitioner's less restrictive household. The daughter's expressed preference to live with petitioner,even at the age of 15, was considered but is not dispositive (see Matter of Meola vMeola, 301 AD2d at 1022). Considering that respondent had always been the primarycaregiver, encouraged the children's educational and extracurricular pursuits and provided ahome with appropriate boundaries, and giving deference to the court's finding that she was morecredible than petitioner, the record fully supports the court's refusal to disturb the long-standingcustody arrangement (see id.; see also Matter of Gravelding v Loper, 42 AD3d at743).
Cardona, P.J., Mercure, Spain and Lahtinen, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: On appeal, the parties onlyaddress custody of the daughter. Custody of the son is apparently no longer at issue.