| Matter of Burch v Willard |
| 2008 NY Slip Op 10089 [57 AD3d 1272] |
| December 24, 2008 |
| Appellate Division, Third Department |
| In the Matter of Kristen Burch, Respondent, v Michael Willard,Appellant. |
—[*1] Daniel C. Cuppett, Plattsburgh, for respondent. Lynne E. Ackner, Law Guardian, Glens Falls.
Rose, J. Appeal from an order of the Family Court of Warren County (Breen, J.), entered October3, 2007, which granted petitioner's application, in a proceeding pursuant to Family Ct Act article 6, tomodify a prior custody order.
Petitioner (hereinafter the mother) and respondent (hereinafter the father), who were divorced in2000, consented to joint legal custody of their two daughters (born in 1995 and 1996), with the fatherto have primary physical custody and the mother to have custodial time on alternate weekends. Nearlytwo years after the last of a series of consent orders was entered, the mother commenced thisproceeding seeking modification of custody. Following a fact-finding hearing and a Lincolnhearing with both children, Family Court concluded that there had been a change in circumstances andthat it would be in the children's best interests to grant the parties equal custodial time alternating on aweekly basis. The father appeals.
While an existing voluntary custody arrangement "will not be set aside unless there is a sufficientchange in circumstances since the time of the stipulation and unless the modification of the custodyagreement is in the best interests of the children" (Matter of Gaudette v Gaudette, 262 AD2d804, 805 [1999], lv denied 94 NY2d 790 [1999]), an arrangement created by the parties isaccorded less weight than one devised by the court after a full hearing (see Matter of [*2]Martin v Martin, 45 AD3d 1244, 1245 [2007]; Matter of Norwood v Capone, 15 AD3d790, 792 [2005], appeal dismissed 4 NY3d 878 [2005]). In addition, while notdispositive, the express wishes of older and more mature children can support the finding of a change incircumstances (see Matter of Oddy v Oddy, 296 AD2d 616, 617 [2002]; Tirschwell vBeiter, 295 AD2d 266, 266 [2002]; Matter of Bowers v Bowers, 266 AD2d 741, 742[1999]).
Here, the record supports Family Court's findings that the father unreasonably restricts contactbetween the children and the mother, his conflicts with the mother have adversely affected the children,and he does not consult with the mother regarding the children's medical and education issues.Significantly, the children are now older and exhibit a high level of intelligence and maturity, and theyhave expressed a desire to spend more time with the mother. Their Law Guardian underscored thisdesire and advocated for an increase in the mother's custodial time with them. According deference toFamily Court's assessment of credibility (seeMatter of Diffin v Towne, 47 AD3d 988, 990 [2008], lv denied 10 NY3d 710[2008]; Matter of Robinson v Cleveland,42 AD3d 708, 710 [2007]; Matter ofLopez v Robinson, 25 AD3d 1034, 1035 [2006]), we agree that these factors constitute achange in circumstances sufficient to justify modification of the prior custody arrangement.
Given these circumstances and our own review of the record, Family Court's decision to grant theparties equal custodial time and require improved communication between them by continuing joint legalcustody, while including in its order detailed provisions promoting each party's right and opportunity toparticipate in medical and other decisions regarding the children, has a sound and substantial basis in therecord and promotes the children's best interests (see Matter of Roe v Roe, 33 AD3d 1152, 1154 [2006]; Redder v Redder, 17 AD3d 10, 13[2005]).
Mercure, J.P., Carpinello, Kane and Malone Jr., JJ., concur. Ordered that the order is affirmed,without costs.