| Matter of Goldsmith v Goldsmith |
| 2008 NY Slip Op 02920 [50 AD3d 1190] |
| April 3, 2008 |
| Appellate Division, Third Department |
| In the Matter of Gregory P. Goldsmith, Respondent, v Renee M.Goldsmith, Appellant. |
—[*1] Charles J. Keegan, Albany, for respondent. Omshanti Parnes, Law Guardian, Plattsburgh.
Kavanagh, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.),entered December 15, 2006, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
In June 2005, petitioner (hereinafter the father) and respondent (hereinafter the mother)consented to the entry of an order which provided for joint legal custody of their seven-year-oldchild, with the mother having primary physical custody. One year later, the mother filed amodification petition seeking permission to relocate to Kentucky with the child. In response, thefather filed a petition requesting that he be awarded primary physical custody of the child. Whilea hearing was being conducted on both applications, the mother withdrew her request forpermission to relocate to Kentucky. After the fact-finding hearing was completed, Family Courtgranted the father's petition, awarded him sole custody of the child and provided visitation rightsfor the mother. We affirm.
To modify an existing custody order, there must be "a showing of sufficient change incircumstances reflecting a real need for change in order to insure the continued best interest ofthe child" (Matter of Van Hoesen v Van Hoesen, 186 AD2d 903, 903 [1992]; see Matter of [*2]Mehaffy v Mehaffy, 23 AD3d 935, 936 [2005], lvdismissed 6 NY3d 807 [2006]). We agree with Family Court that the father has establishedthat a change in circumstances has in fact occurred which requires a modification of the existingcustody order. Given the obvious inability of these parents to work and communicate with oneanother for the best interest of their child, continued joint custody is simply not feasible (see Matter of Grant v Grant, 47 AD3d1027, 1028 [2008]). The evidence submitted during the hearing clearly and convincinglyestablished that the mother was the party primarily responsible for this ongoing inability tocooperate in decisions which relate to the child's welfare and development.
Upon making such a finding, Family Court was then required to decide what custodialarrangement would serve the best interest of the child (see Eschbach v Eschbach, 56NY2d 167, 171 [1982]; Matter ofMartin v Martin, 45 AD3d 1244, 1244 [2007]), taking into consideration "such relevantfactors as maintaining stability in the child's life, the wishes of the child, the quality of the homeenvironment, each parent's past performance, relative fitness and ability to guide and provide forthe child's intellectual and emotional development, and the effect the award of custody to oneparent would have on the child's relationship with the other" (Matter of Fletcher v Young,281 AD2d 765, 767 [2001]; see Matter of Grant v Grant, 47 AD3d at 1028; Matter of Kilmartin v Kilmartin, 44AD3d 1099, 1102 [2007]). According due deference to the credibility determinations madeby Family Court (see Matter of Bedard vBaker, 40 AD3d 1164, 1165 [2007]; Matter of Wendy Q. v Richard Q., 36 AD3d 1000, 1001 [2007]; Matter of Eck v Eck, 33 AD3d1082, 1083 [2006]), there is ample support for its finding that circumstances concerningeach parent's relationship with the child as well as with each other has changed to such an extentas to warrant a modification of the existing custodial arrangement and to award physical custodyto the father.
Specifically, the father has established at the hearing that while being primarily in charge ofthe child's care and well-being, the mother's lifestyle has been chaotic and unstable. She hasfailed to obtain permanent employment, refused to cooperate with school officials in addressingthe child's special educational needs, has not had permanent housing, and has consistently madeunilateral decisions which affect the child's care and development.[FN1] She has often used inappropriate language in the presence of the child and, while acknowledgingdifficulty in controlling her temper, the mother has refused to participate in anger managementtherapy and simply does not appear to recognize the impact these tirades have had on herson.[FN2] The evidence also established that the mother has repeatedly sought to convince the child [*3]throughout this proceeding that it is the father's fault that they areinvolved in this litigation and admits telling the child on at least one occasion that he had to go tocourt because "your father is making you." In addition, during the five-month period prior to thehearing, the mother has moved with the child to three different residences, and during the hearingshe was living with a male friend at his abode and not paying rent.
This description of the mother's lifestyle and her relationship with the child stands in starkcontrast to that of the father, who has been in a stable relationship with the same woman for morethan four years with whom he has a daughter. They have lived as a family in the same residencefor the last two years, are both gainfully employed and the father is in the process of completingcourses so that he can obtain an Associate's degree. The father has faithfully cooperated withschool officials in an effort to address the child's special educational needs and has been fullyinvolved in the development of an appropriate curriculum for the child for the school year.Finally, the child's Law Guardian supports the conclusion reached by Family Court that it is inthe child's best interest that custody be given to the father and that he be placed in a position tomore intimately chart the child's development and monitor his progress (see Matter of BruceBB. v Debra CC., 307 AD2d 408, 409 [2003]; see also Matter of Young v Collins, 37 AD3d 1014, 1014 [2007]).On balance, the record supports the conclusion that "the child would enjoy a more stable andsupportive environment if custody were granted to [the father]" (Matter of Bedard vBaker, 40 AD3d at 1166).
Finally, we disagree with respondent's claim that Family Court erred by not ordering morevisitation. "The propriety of visitation is left to the sound discretion of Family Court and itsfindings, guided by the best interests of the child, will not be disturbed unless they lack a soundbasis in the record" (Matter of Moore vSchill, 44 AD3d 1123, 1123 [2007] [citations omitted]; see Matter of Roe v Roe, 33 AD3d1152, 1155 [2006]).
We have reviewed the mother's remaining contentions and find them lacking in merit.
Cardona, P.J., Carpinello, Lahtinen and Malone Jr., JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: In fact, while this proceedingwas pending, the mother, without the father's knowledge and consent, transferred the child toanother school district. An order was subsequently issued directing the child's return to the schooldistrict that he was attending at the commencement of this proceeding.
Footnote 2: In one instance, a teacherreported that the mother told the child that she was going to have the father put in jail as a resultof his participation in this proceeding.