| Matter of Michael P. v Judi P. |
| 2008 NY Slip Op 02231 [49 AD3d 1158] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of Michael P., Respondent, v Judi P.,Appellant. In the Matter of Judi P., Appellant, v Michael P., Respondent. In the Matter of RonaldW., Respondent, v Judi P., Appellant. In the Matter of Judi P., Appellant, v Ronald W.,Respondent. |
—[*1] Carmen J. Valvo, Law Guardian, Rome, for Brianna P. and Ronald R.W.
Appeal from an order of the Family Court, Oneida County (James R. Griffith, J.), enteredJanuary 14, 2005 in a proceeding pursuant to Family Court Act article 6. The order, among other[*2]things, awarded primary physical custody of Ronald R.W. topetitioner-respondent Ronald W. and awarded primary physical custody of Brianna P. topetitioner-respondent Michael P.
It is hereby ordered that the order so appealed from is unanimously modified on the law byawarding primary physical custody of the children to respondent-petitioner, Judi P., and byvacating the 7th through 10th ordering paragraphs and as modified the order is affirmed withoutcosts, and the matter is remitted to Family Court, Oneida County, for further proceedings inaccordance with the following memorandum: Judi P., the mother of the two children at issueherein, appeals from an order that, inter alia, awarded primary physical custody of her son anddaughter to their respective fathers, Ronald W. and Michael P., with joint custody with themother and the respective fathers. We agree with the mother and the Law Guardian that it is notin the best interests of the children to reside with their fathers. Our authority is as broad as that ofFamily Court in matters of custody (see Matter of Louise E. S. v W. Stephen S., 64 NY2d946, 947 [1985]; Matter of Gabriela, 283 AD2d 983, 984 [2001], lv denied 96NY2d 721 [2001]) and, in our view, the court's determination lacks a sound and substantial basisin the record and thus should not be given deference (see Matter of Bryan K.B. v Destiny S.B., 43 AD3d 1448, 1449[2007]; Gabriela, 283 AD2d at 984). In making a determination concerning custody,"numerous factors are to be considered, including the continuity and stability of the existingcustodial arrangement, the quality of the child's home environment and that of the parent seekingcustody, the ability of each parent to provide for the child's emotional and intellectualdevelopment, the financial status and ability of each parent to provide for the child, and theindividual needs and expressed desires of the child" (Matter of Jeffrey L.J. v Rachel K.B., 42 AD3d 912, 913 [2007];see Fox v Fox, 177 AD2d 209, 210 [1992]).
At the time Ronald filed his petition seeking custody of his son, the child had been in themother's primary physical custody for 10 years pursuant to an existing custodial arrangemententered upon the consent of Ronald and the mother. "It is well established that alteration of anestablished custody arrangement will be ordered only upon a showing of a change incircumstances which reflects a real need for change to ensure the best interest[s] of the child"(Matter of Irwin v Neyland, 213 AD2d 773, 773 [1995]; see generally Eschbach vEschbach, 56 NY2d 167, 171 [1982]). The record before us establishes that the son had nobehavioral issues and had been doing well academically while residing with his mother, whereashe was unhappy and not performing as well academically while in Ronald's care pursuant to atemporary order issued by the court. In awarding primary physical custody of both children totheir respective fathers, the court was primarily concerned with the mother's association withknown criminals, but the mother testified at the hearing on the petitions that she was no longerassociating with those individuals since the issuance of the court's temporary order. In addition,we note that both the mother and Ronald had allowed the children to be in the company ofindividuals with criminal backgrounds, and Ronald himself had a criminal background. We thusconclude that the court erred in failing to hold Ronald equally accountable for his actions. Thequality of the home environment weighed in favor of the mother inasmuch as she had athree-bedroom home whereas Ronald had a two-bedroom home that was still under construction.The evidence also established that the mother took an active role in the son's emotional andintellectual development, while Ronald had not placed priority on the son's well-being, havingthe son stay in his vehicle all day while he worked and having taken his son with him on a date.
With respect to the daughter, the record before us establishes that her father, Michael, alsohad allowed her to be in the company of individuals with known criminal backgrounds and,indeed, had hired one of those individuals as a baby-sitter. Although there was no formal custodyarrangement between the mother and Michael, the mother has had primary physical custody ofthe daughter since Michael moved out of the house in October 2002. Michael testified that heworked 60 to 70 hours per week, including midnight shifts, and that he therefore relied primarily[*3]on his present girlfriend, who was married to another man, tocare for the daughter. Although Michael denied having any issues with drinking or gambling, thetestimony of the mother and, indeed, his own testimony suggested otherwise. Further, by grantingprimary physical custody to the mother, the siblings will once again be residing in the samehousehold (see Eschbach, 56 NY2d at 173; Salerno v Salerno, 273 AD2d 818,819 [2000]).
We therefore modify the order by awarding the mother primary physical custody of thechildren and by vacating those ordering paragraphs providing for visitation, and we remit thematter to Family Court to fashion an appropriate visitation schedule. Present—Scudder,P.J., Martoche, Centra, Fahey and Gorski, JJ.