| Matter of Gorham v Gorham |
| 2008 NY Slip Op 09133 [56 AD3d 985] |
| November 20, 2008 |
| Appellate Division, Third Department |
| In the Matter of Holly Gorham, Respondent, v Clifford H. Gorham,Appellant. (And Another Related Proceeding.) |
—[*1] Marsha K. Purdue, Glens Falls, for respondent. Susan B. Marris, Law Guardian, Manlius.
Spain, J. Appeal from an order of the Family Court of Clinton County (Lawliss, J.), enteredNovember 21, 2007, which granted petitioner's applications, in two proceedings pursuant toFamily Ct Act article 6, for a modification of prior orders of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents oftwo children, a son (born in 1991) and a daughter (born in 1994). The mother resides in a ruralsetting in the Town of Mooers, Clinton County near her parents who—over theyears—have participated in the rearing of each of the children. The father resides in theCity of Troy, Rensselaer County. Under the original joint custody order, the mother retainedphysical custody of both children; in January 2006, the son expressed a desire to live with thefather and, on consent, the father became his primary physical custodian. Approximately twomonths later, the father obtained physical custody of the daughter, by an order—also onconsent—resolving a drug-related neglect petition brought against the mother. Thereafter,the mother filed modification petitions seeking physical custody of both children under thecontinuing original joint custody order, asserting that she had turned her life around and wasconcerned with the children's living situation at the father's urban residence. Following a hearing,Family Court found a change in circumstances and, while finding both parents to be fit, modifiedby awarding [*2]primary physical custody of both children to themother. The modification was based upon, among other things, the mother's capacity to providebetter and more direct parental supervision and a better living environment for both children, andthe son's truancy, academic problems, and misbehavior in the community—all occurringwhile living with the father. The father now appeals and we affirm.
A parent seeking modification of an existing custody order bears the burden of proving thatthere has been a " 'sufficient change in circumstances making modification necessary for thecontinued best interests of [the] child[ren]' " (Matter of Leo v Leo, 39 AD3d 899, 900-901 [2007], quoting Matter of Roe v Roe, 33 AD3d1152, 1153 [2006]; see Matter ofGoodfriend v Devletsah-Goodfriend, 29 AD3d 1041, 1042 [2006]). Here, the motherproffered sufficient evidence demonstrating a substantial change in circumstances requiringreconsideration of the prior custody order. Testimony from the mother's counselor revealed thatshe had made significant and meaningful progress in treating her marihuana addiction, and had,in fact, been in treatment for 18 months and in full abstinence for over a year at the time of thehearing. Moreover, the mother took full responsibility for her prior actions and behavior that hadled to the allegations of neglect against her. The mother also successfully completed classes onparenting and how to manage a home. Her caseworker testified that she had completely reformedher ways and had become a different person than she was when the order of neglect was enteredagainst her.
Moreover, the record reveals that, since the prior order of custody regarding the son wasentered, the son's situation while residing with the father had taken a substantial turn for theworse. That is, he failed three classes in high school, skipped class quite frequently, begansmoking marihuana and was placed in a person in need of supervision diversion program afterhis involvement in the destruction of property. Additionally, proof of the father's lack of attentionto the daughter's proper placement in school was also presented. Indeed, the evidence adducedpresented a significant change in circumstances warranting reconsideration of each of the priorcustody orders (see Matter of Grant vGrant, 47 AD3d 1027, 1028 [2008]).
Upon our review of the record before us, we conclude that Family Court—whichspoke with each of the children in camera—had ample evidence to support itsdetermination that the best interests of the children required that physical custody of the childrenbe granted to the mother. "[T]he 'primary concern in any child custody case is the best interest[s]of the child[ren]' " (Matter of Grant v Grant, 47 AD3d at 1028, quoting Matter ofGoodfriend v Devletsah-Goodfriend, 29 AD3d at 1042; see Eschbach v Eschbach, 56NY2d 167, 171 [1982]; Matter ofKilmartin v Kilmartin, 44 AD3d 1099, 1101-1102 [2007]). Here, the mother lives in athree bedroom farmhouse in a rural setting close to the maternal grandparents. The father'sresidence is in what he concedes is a rough neighborhood where it was alleged that gang-relatedactivity and violence to another boy in the household had occurred. Moreover, after the son wascaught vandalizing property in Troy, he admitted to smoking marihuana. At that point, the son'sprobation officer recommended that the father seek a drug and alcohol evaluation for the son,which the father failed to do, believing it unnecessary.
In contrast, the mother—despite the distance—continued to be involved in thechildren's education and raised concerns about the placement of the daughter in a regularclassroom given her limited educational abilities; the father expressed no qualms with thedaughter's educational placement. Although the mother was jailed for a week for having someoneforge a signature, she has made significant gains toward becoming a better parent. [*3]Moreover, the bond between the children and their maternalgrandparents is significant. Given the foregoing and according due deference to Family Court'sability to evaluate the credibility of the witnesses, we conclude that the court properly modifiedthe prior orders of custody (see Matterof Eck v Eck, 33 AD3d 1082, 1083 [2006]; Matter of Graham v Graham, 24 AD3d 1051, 1052 [2005], lvdenied 6 NY3d 711 [2006]), a ruling consistent with the position taken by the attorneyrepresenting the children.
Cardona, P.J., Rose, Malone Jr. and Stein, JJ., concur. Ordered that the order is affirmed,without costs.