| Matter of Martin v Martin |
| 2009 NY Slip Op 03426 [61 AD3d 1297] |
| April 30, 2009 |
| Appellate Division, Third Department |
| In the Matter of Jeffrey J. Martin, Appellant, v Lea M. Martin,Respondent. |
—[*1] Andrew M. Dunn, Oneida, for respondent. John D. Cadore, Law Guardian, Binghamton.
Cardona, P.J. Appeal from an order of the Family Court of Broome County (Pines, J.),entered April 8, 2008, which dismissed petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, for modification of a prior custody order.
The parties are the divorced parents of one son, born in 1997. In 2005, Family Court(Sgueglia, J.) issued an order upon stipulation granting the parties joint legal custody of thechild, with respondent (hereinafter the mother) having primary physical custody and petitioner(hereinafter the father) having liberal visitation. In November 2007, the mother's boyfriend brokeinto her home and assaulted her in front of the child. The child ran to the neighbor's house forhelp, the police were called and, once the situation was dealt with, the child returned home withhis mother.
The father commenced this proceeding the following day seeking sole custody of the child,alleging chronic alcohol consumption and domestic violence in the mother's home. Following anexpedited hearing, Family Court (Connerton, J.) issued a temporary custody order placing thechild with the father pending an investigation by Child Protective Services. That order was laterextended and the father's child support obligation was suspended pending resolution of theproceeding.[*2]
Following a hearing, and after taking judicial notice of allprior Family Court proceedings involving the parties, Family Court (Pines, J.) dismissed thepetition, holding that the father had failed to demonstrate that the 2005 custody order should bemodified. The court reinstated that order, and the father now appeals.
An established custody arrangement will be altered "only upon a showing of sufficientchange in circumstances reflecting a real need for change in order to insure the continued bestinterest of the child" (Matter of Passerov Giordano, 53 AD3d 802, 803 [2008] [internal quotation marks and citations omitted];see Matter of Diffin v Towne, 47AD3d 988, 990 [2008], lv denied 10 NY3d 710 [2008]). "In deciding whether achange of custody is warranted, an existing arrangement borne of the parties' mutual agreementis a factor to be considered, along with the quality of the respective home environments, thechild's wishes, the length of time the present custody arrangement has been in place and eachparent's past performance, relative competence and capacity to provide for and direct the child'sdevelopment" (Matter of De Hamel vPorto, 22 AD3d 893, 894 [2005] [citations omitted]; see Matter of Valenti v Valenti, 57 AD3d 1131, 1133 [2008],lv denied 12 NY3d 703 [2009]).
Initially, the father contends that the child's wishes were not fully considered. We do notagree. In its decision, Family Court specifically considered the child's testimony; however, thecourt explained that it found most of that testimony to be inaccurate or unreliable. In particular,the court noted that the child appeared to have memorized a list of complaints and "seemed to beunder some strong pressure to make sure that the entire list was disgorged to the court." Giventhe court's opportunity to view the child and evaluate his demeanor, as well as our ownopportunity to review the child's testimony, we find it appropriate to defer to the court'scredibility determination in that regard (see Matter of Lopez v Robinson, 25 AD3d 1034, 1035 [2006]).
Furthermore, upon our review of the record as a whole, we are satisfied that it provides "asound and substantial basis" to support Family Court's custodial determination (Matter of Eck v Eck, 57 AD3d1243, 1244 [2008]; see Matter of Diffin v Towne, 47 AD3d at 990).[FN*]Notably, the father's claims of abuse and neglect by the mother were not borne out by any of thechild protective investigations initiated by him, and the record does not support the type ofphysical abuse or excessive alcohol consumption alleged. Nor were the father's allegations ofongoing domestic violence supported by the testimony. Although we are troubled by the fact thatthe child was exposed to the attack on his mother, we note that the mother, who was asleep whenher then boyfriend broke down the door and tried to strangle her, responded appropriately to theincident by ending her relationship with him, having him arrested, and obtaining an order ofprotection against him. Moreover, the [*3]testimony of severalwitnesses supports the court's conclusion that prior to the change in custody that ensued, themother and child were strongly bonded. The evidence also confirms that as the child's primarycaretaker, the mother maintained a job and was actively involved with his academic progress,including his special education needs.
The father, on the other hand, despite his claims to be interested in the child's academicperformance, did not appear to be aware of the child's learning disability or special educationalneeds. Additionally, although he claims that the child needs counseling to deal with the traumaof the attack on his mother, he made no meaningful effort to arrange for it when the child was inhis custody. And importantly, he does not appear to have cooperated with the mother's attemptsto arrange visitation with the son during the course of the temporary custody arrangement,resulting in her having visited with the son for only four hours in four months.
In sum, although we recognize that the father also has a close relationship with the child,under all of the circumstances, we find that the record provides a sound and substantial basis tosupport Family Court's decision continuing the custody arrangement established in the 2005order.
Peters, Lahtinen, Kane and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: The father's argument thatFamily Court erred by taking judicial notice of certain other Family Court proceedings involvingthe same parties is unpersuasive (seeMatter of Anjoulic J., 18 AD3d 984, 986 [2005]). Furthermore, to the extent that thecourt may have considered several domestic violence indications against the father withoutgiving him an opportunity to challenge their accuracy (see Matter of Justin EE., 153AD2d 772, 774 [1989], lv denied 75 NY2d 704 [1990]), we find any error to have beenharmless in light of the other evidence supporting the custodial determination.