| Matter of Betro v Carbone |
| 2008 NY Slip Op 03870 [50 AD3d 1583] |
| April 25, 2008 |
| Appellate Division, Fourth Department |
| In the Matter of James W. Betro, Respondent, v Enessa M.Carbone, Respondent. A.J. Bosman, Esq., Law Guardian, Appellant. |
—[*1] James W. Betro, petitioner-respondent pro se. Getnick Livingston Atkinson Gigliotti & Priore, LLP, Utica (Thomas L. Atkinson ofcounsel), for respondent-respondent.
Appeal from an order of the Family Court, Oneida County (Brian M. Miga, J.), enteredDecember 30, 2006 in a proceeding pursuant to Family Court Act article 6. The order, amongother things, granted the cross petition of respondent and awarded her sole custody of the parties'children.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Family Court properly denied petitioner father's petition seeking to modifythe existing custody order by awarding primary physical custody of the parties' children to thefather, and the court properly granted the cross petition of respondent mother seeking to modifythe order by awarding sole custody of the children to the mother. Addressing first the crosspetition, we reject the contention of the Law Guardian that the court erred in modifying theexisting joint custody arrangement. It is well settled that "joint custody is inappropriate [when]the parties have an acrimonious relationship and are unable to communicate with each other in acivil manner" (Matter of ChristopherJ.S. v Colleen A.B., 43 AD3d 1350, 1350-1351 [2007]), and this is such a case. Wefurther conclude with respect to the father's petition seeking primary physical custody of thechildren that the father failed to establish a change in circumstances reflecting a real need forchange in the primary physical residence of the children to ensure that their best interests wereserved (see Matter of James D. vTammy W., 45 AD3d 1358 [2007]). Although one of the children expressed a desire tolive with the father, the "established custodial arrangement should not be changed solely toaccommodate the desires of the child" (Fox v Fox, 177 AD2d 209, 211 [1992]; seeMatter of Johnston v Bridenbecker, 300 AD2d 1062 [2002]). We have considered the LawGuardian's remaining contention and conclude that it is without merit. Present—Scudder,P.J., Hurlbutt, Centra, Green and Gorski, JJ.