| Matter of Frey v Ketcham |
| 2008 NY Slip Op 09598 [57 AD3d 543] |
| December 2, 2008 |
| Appellate Division, Second Department |
| In the Matter of Edward Frey, Respondent, v Stacie A.Ketcham, Appellant. |
—[*1] Tor Jacob Worsoe, Jr., Holtsville, N.Y., for respondent. Michael S. Bromberg, Sag Harbor, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appeals, as limitedby her brief, from so much of an order of the Family Court, Suffolk County (Lynaugh, J.), dated August3, 2007, as, after a hearing, in effect, granted the father's petition to modify a prior custody order of thesame court dated August 16, 2006, awarding the parties joint custody of their child, so as to award himsole custody of the parties' child and set a visitation schedule for her.
Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.
"Where, as here, the parties have entered into an agreement concerning custody, it will not bemodified absent a change in circumstances, and unless a modification would be in the best interests ofthe child" (Matter of Battista v Fasano,41 AD3d 712, 713 [2007]; seeSmoczkiewicz v Smoczkiewicz, 2 AD3d 705, 706 [2003]). "Factors to be considered include'the quality of the home environment and the parental guidance the custodial parent provides for thechild, the ability of each parent to provide for the child's emotional and intellectual development, thefinancial status and ability of each parent to provide for the child, the relative fitness of the respectiveparents, and the effect an award of custody to one parent might have on the child's relationship with theother parent' " (Kaplan v Kaplan, 21AD3d 993, 994 [2005], quoting Miller [*2]v Pipia, 297AD2d 362, 364 [2002]; see Eschbach v Eschbach, 56 NY2d 167 [1982]). The trial court'sfindings will not be disturbed unless they lack a sound and substantial basis in the record (seeMatter of Battista v Fasano, 41 AD3d at 713; Matter of Johnson v Johnson, 309 AD2d750, 751 [2003]).
Here, contrary to the mother's contention, the Family Court properly considered the factorsrelevant to a custody determination. The evidence at the hearing demonstrated that the child hadbehavioral problems as a result of the mother's inability to provide a stable home environment. Thecourt also properly considered the evidence of domestic violence and its effects upon the child(see Domestic Relations Law § 240 [1]; Matter of Rodriguez v Guerra, 28 AD3d 775, 776 [2006]; Matter of Moreno v Cruz, 24 AD3d780, 781 [2005]; Matter of Wissink v Wissink, 301 AD2d 36, 39-40 [2002]), as well asthe mother's conduct in alienating the child from his father, in disregard of the father's rights as a jointcustodial parent (see Zafran v Zafran, 28AD3d 753, 755 [2006]; Bobinski vBobinski, 9 AD3d 441 [2004]; Stern v Stern, 304 AD2d 649 [2003]; Young vYoung, 212 AD2d 114, 122 [1995]). Moreover, given the level of acrimony between the partiesand their inability to function together in a manner necessary for a joint arrangement, the Family Court'sdetermination to award sole custody of the child to the father, rather than joint custody to both parents,did not lack a sound and substantial basis (see Eschbach v Eschbach, 56 NY2d at 173).
The mother's remaining contentions are unpreserved for appellate review and, in any event, arewithout merit. Spolzino, J.P., Covello, Angiolillo and Chambers, JJ., concur.