| Matter of Zwack v Kosier |
| 2009 NY Slip Op 02492 [61 AD3d 1020] |
| April 2, 2009 |
| Appellate Division, Third Department |
| In the Matter of Roy John Zwack, Respondent, v Andrea Kosier,Appellant. |
—[*1] Thomas C. Hall, Troy, for respondent. J. Mark McQuerrey, Law Guardian, Hoosick Falls.
Malone Jr., J. Appeal from an order of the Family Court of Rensselaer County (Cholakis, J.),entered July 5, 2007, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
The parties are the parents of a daughter (born in 1997). Family Court initially ordered jointlegal custody and awarded physical custody to respondent (hereinafter the mother), who residedin the Town of East Greenbush, Rensselaer County. An October 2006 order, embodying theparties' August 2006 stipulation, found that the mother had willfully violated the previouscustody order and set out a detailed visitation and telephone access schedule for petitioner(hereinafter the father), who resided in Michigan, and his family members. The October 2006order also directed that the penalty for any violation by the mother would be the transfer ofphysical custody to the father. Shortly after the October 2006 order was entered, both partiesfiled petitions alleging various violations of the stipulation and order, with the father additionallyseeking an award of physical custody. Family Court temporarily granted the father physicalcustody of the child and, following an extensive hearing, awarded him sole legal and physicalcustody. The mother now appeals.[*2]
We affirm. "It is by now well settled that 'an existingcustody arrangement will not be modified unless changed circumstances have occurred since theentry of the prior custody order impacting the child's best interests' " (Posporelis v Posporelis, 41 AD3d986, 988 [2007], quoting Matter ofDeuel v Dalton, 33 AD3d 1158, 1159 [2006]; see Matter of Gorham v Gorham, 56 AD3d 985, 986 [2008]). Abest interests analysis is required even where, as here, the parties agreed to an automatic changein custody "upon one's failure to satisfy a condition or the happening of a specified event"(Posporelis v Posporelis, 41 AD3d at 989). Assuming, without deciding, that the fatherremained obliged to demonstrate a change in circumstances in the wake of the parties' stipulation(see id.), such a change, showing the unworkability of joint legal custody, was apparenthere given the almost immediate violations of the stipulation and October 2006 order by themother, the lack of communication between the mother and the father or his family and themother's statements that she had no reason to talk to the father and saw no need to discuss issuesregarding the child with him (see Matterof Ferguson v Whible, 55 AD3d 988, 990 [2008]; Matter of Harper v Jones, 292AD2d 649, 650 [2002]).
Upon determining that a change of circumstances had occurred which impacted upon thechild's best interests, Family Court was required to reconsider the custodial arrangement then inplace (see Matter of McGovern v McGovern, 58 AD3d 911, 914 [2009]). Both themother and the Law Guardian argue that the best interests of the child would be served byawarding physical custody to the mother. In determining what custodial arrangement would be inthe best interests of the child, the relevant factors include "maintaining stability in the child's life,the wishes of the child, the quality of the home environment, each parent's past performance,relative fitness and ability to guide and provide for the child's intellectual and emotionaldevelopment, and the effect the award of custody to one parent would have on the child'srelationship with the other" (Matter of Fletcher v Young, 281 AD2d 765, 767 [2001]; see Matter of Smith v Miller, 4 AD3d697, 698 [2004]).
According appropriate deference to the credibility determinations made by Family Court inrendering its decision, we agree with it that the best interests of the child lie in awarding physicalcustody to the father (see Matter ofGoldsmith v Goldsmith, 50 AD3d 1190, 1192-1193 [2008]). There is no question thatthe child has spent the bulk of her life with the mother, has maintained a loving relationship withher, and that questions do exist regarding the level of the father's involvement with the child.However, the evidence indicates that the father was more willing than the mother to allow thechild to establish or maintain relationships with the other parent as well as other familymembers, including the mother's grandmother. The father was employed, had a room for thechild at his home, and the child received help with her homework from both the father and hiswife.[FN*]The father also continued to keep the child in counseling and discussed hiring a tutor with theschool counselor. In contrast, the mother lived with her parents, the child and the mother slept inthe same room while she had custody, and the mother failed to consistently attend court-orderedcounseling. Moreover, although the child preferred her school in New York, she stated that sheenjoyed being with both parents.[*3]
Lastly, we note that, although the father was thenoncustodial parent and had lived in Michigan for some time, Family Court should haveconsidered whether relocation of the child was in the child's best interests (see Matter ofBodrato v Biggs, 274 AD2d 694, 695 [2000]; Matter of Messler v Messler, 218AD2d 157, 158-159 [1996]). Although the mother did not specifically raise the issue beforeFamily Court, the relocation issue is enmeshed with the best interests analysis and "the courtmust consider all [material] factors" in making its custodial determination (Matter of Messlerv Messler, 218 AD2d at 160). Having said that, the record before us permits informedconsideration of the issue (see Matter of Harder v Yandoh, 228 AD2d 814, 816 [1996]).The change in custody was otherwise desirable and Family Court made generous visitationprovisions that allowed the mother visitation on alternate holidays and school vacations, inaddition to several consecutive weeks of visitation with the child every summer (see Matterof Bodrato v Biggs, 274 AD2d at 696). Under these circumstances, we find that the changein custody was in the child's best interests, notwithstanding the relocation.
Mercure, J.P., Peters, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Although the Law Guardianstated that the father's wife and children had moved out, Family Court properly declined toconsider that and other facts outside the record cited in the Law Guardian's posttrialrecommendations (see Matter of Treiderv Lamora, 44 AD3d 1241, 1243 [2007], lv denied 9 NY3d 817 [2007]; Weiglhofer v Weiglhofer, 1 AD3d786, 788 n [2003]).