| Matter of Cree v Terrance |
| 2008 NY Slip Op 07809 [55 AD3d 964] |
| October 16, 2008 |
| Appellate Division, Third Department |
| In the Matter of Veronica D. Cree, Appellant, v Shane W. Terrance,Respondent. (And Another Related Proceeding.) |
—[*1] Marsha K. Purdue, Law Guardian, Glens Falls.
Spain, J. Appeal from an order of the Family Court of St. Lawrence County (Potter, J.), enteredOctober 23, 2006, which, among other things, dismissed petitioner's application, in a proceedingpursuant to Family Ct Act article 6, for modification of a prior order of custody.
Petitioner (hereinafter the mother) commenced this proceeding seeking modification of a 2000custody order which, on agreement by the parties, gave them joint legal custody of the children (born in1994 and 1995), with primary physical custody to respondent (hereinafter the father) and scheduledparenting time for the mother. The mother's petition seeks to reverse the current arrangement, giving herprimary physical custody with parenting time to the father. In October 2006, following a hearing, FamilyCourt made an oral fact-finding decision and entered a dispositional order which, among other things,continued primary physical custody with the father and provided for suspension of the mother'sparenting time if she resided with any males under the age of 18. Due to an audio recorder malfunction,the court's decision was not recorded. After a reconstruction hearing, the court issued a writtenfact-finding decision in January 2008. The mother now appeals from the October 2006 dispositionalorder, and we affirm.[*2]
Initially, we reject the mother's contention that Family Court'sreconstruction of its oral fact-finding decision was inadequate. In a criminal case, the defendant isentitled to reversal and remittance following reconstruction of the lost minutes of a proceeding onlywhere he or she establishes that the reconstructed material does not "satisfactorily demonstrate whethergenuine appealable and reviewable issues do or do not exist" (People v Glass, 43 NY2d 283,286 [1977]; see People v Parris, 4NY3d 41, 46 [2004]). Here, in this Family Court proceeding, we are not dealing with lost minutesof testimony but, rather, the decision of the court at the conclusion of the proceeding. Upon discoveringthat its oral fact-finding decision was not recorded, the same Judge who rendered the decision held areconstruction hearing and requested that each counsel submit his or her notes of the court's oraldecision. The court then considered those submissions—along with the Court Clerk's notes andthe court's own notes and recollection—in reconstructing that decision in a nine-page writtendocument. Under these circumstances, it is the mother's burden to demonstrate that the reconstructeddecision is deficient (see People v Yavru-Sakuk, 98 NY2d 56, 60 [2002]).
The mother clearly did not meet her burden. Contrary to her contentions, Family Court sufficientlydiscussed the factors applicable to this case, including—despite the father's unilateralmove—the stability of the existing arrangement, the quality of the home environment, the lengthof the prior custody arrangement, the parties' respective ability to make appropriate parental decisions,and the children's stated preferences. Family Court's misstatements in its written decision of the namesof two of the many people that the mother resided with prior to the hearing are immaterial to the court'sfindings. On the record before us, the mother's right to appeal was in no way compromised by thecourt's reconstructed decision (cf. Matter of Carrara [Sweeney], 241 AD2d 716, 717[1997]). In any event, anything lacking in Family Court's factfinding can be overcome—wherethe hearing record is complete—by our independent review power, as our authority "in mattersof custody is as broad as that of the Trial Judge" (Matter of Louise E.S. v W. Stephen S., 64NY2d 946, 947 [1985]; see Matter of Titus v Guzzey, 244 AD2d 684, 685 n [1997],appeal dismissed 91 NY2d 921 [1998], cert denied 523 US 1139 [1998]).
Turning to the merits, we find no basis upon which to disturb Family Court's decision to continueprimary physical custody with the father. As a threshold matter, we find ample support for FamilyCourt's determination that the father's move with the children from their long-term home in the Town ofMassena, St. Lawrence County, to the Town of Malone, Franklin County, without consulting themother—a move which increased the distance from her home, required a change of schools andresulted in the children being watched by a babysitter rather then their paternal grandparents on a dailybasis—constituted a sufficient change in circumstances to seek a review of whether the existingcustody arrangement was in the best interests of the children (see Matter of Robertson v Robertson, 40 AD3d 1219, 1220 [2007]; Matter of Wiedenkeller v Hall, 37 AD3d1033, 1034-1035 [2007], lv denied 8 NY3d 816 [2007]).
Several witnesses testified at the fact-finding hearing, creating numerous factual issues to beresolved by Family Court. Our independent review, according deference to Family Court as it is in the"best position to evaluate the credibility of the witnesses" (Matter of Treider v Lamora, 44 AD3d 1241, 1242 [2007], lvdenied 9 NY3d 817 [2007]), confirms that the court's best interests determination is supported inthe record. While both parents demonstrated steady employment, the court concluded that the motherwas less likely to provide stability to the children's lives. This conclusion is supported by, among otherthings, evidence that the mother had moved at least five times since the 2000 custody order, residing ineach separate dwelling with numerous different people, many of whom were not related to her (see Matter of Robinson v [*3]Cleveland, 42 AD3d 708, 709 [2007]; Matter of Gee vBrothers, 267 AD2d 786, 787 [1999], lv denied 94 NY2d 764 [2000]). Moreover, wefully concur with the court's finding that the record evidence of inappropriate behavior involving twoseparate teenage boys who resided in those dwellings demonstrates that the mother has exhibited poorparental judgment (see Matter of Gast vGast, 50 AD3d 1189, 1190 [2008]; Matter of Hudson v Hudson, 279 AD2d 659,660-661 [2001]). In our view, such behavior borders on unfitness.
On the other hand, while Family Court acknowledged the father's parental failures, specificallynoting his demonstrated lack of effort to keep the mother informed of issues related to the children'shealth care, the court concluded that the father was the parent who would continue to provide morestability and a better home environment for the children. While the mother had moved a number oftimes, the father had moved only once since the children were born and, given that the prior custodyorder had been in place for 5½ years, it was appropriate to give it weight in terms of the stabilitythat arrangement has provided to the children (see Matter of Vickery v Vickery, 28 AD3d 833, 833-834 [2006]).
Under these circumstances, we hold that Family Court's decision and order, including the provisionrequiring suspension of the mother's parenting time if she resides with any male under the age of 18,have a sound and substantial basis in the record and will not be overturned (see Matter of Robinsonv Cleveland, 42 AD3d at 709; Matter of Gee v Brothers, 267 AD2d at 787-788;Matter of Bogert v Rickard, 199 AD2d 587, 588-589 [1993]).
Cardona, P.J., Mercure, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.