| Matter of Timothy V. v Rene W. |
| 2009 NY Slip Op 04315 [63 AD3d 1210] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Timothy V., Respondent, v Rene W.,Appellant. |
—[*1] Kenneth Esrick, Law Guardian, Chatham.
Spain, J.P. Appeal from an order of the Family Court of Columbia County (Czajka, J.),entered February 26, 2008, which partially granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are parents of ason born in 1994, just after the father turned 16 years of age and the mother was 28 years of age.The father, who had absconded from a social services' placement at the age of 14 andcommenced living with the mother as her boyfriend, continued to reside with her and her twoyoung children until he was 18 years old. In 1997, when the father was 19 years old, the parties,acting pro se, entered into a stipulated custody order in Family Court which granted the mothersole legal and physical custody of the son, and provided the father with three weekends ofparenting time per month. In 2007, the then 29-year-old father filed this petition for modificationof custody seeking sole legal and physical custody alleging that the mother had failed toadequately provide for the son's educational, counseling, and medical/dental needs. Followingfact finding, including a Lincoln hearing with the parties' then 13-year-old son, FamilyCourt made lengthy findings and issued an order of modification awarding the parties joint legalcustody, continuing the mother's primary physical custody until the end of the 2007-2008 (eighthgrade) school year, and awarding the father primary physical custody thereafter. The ordergranted the mother extensive parenting time, including all breaks, vacations and weekendsduring the school year, and all but two weeks of the summer vacation, during which the fatherhas alternate weekends. The mother appeals.[*2]
At the hearing, the parties were the only witnesses totestify. The mother lives in Columbia County with her boyfriend of eight years and the son. Shesuffers from a progressive degenerative disease and has been on disability since 2002. The fatherlives in northwestern Connecticut, about 30 minutes away, with his wife and their seven-year-oldson (hereinafter the younger son). They are both employed full time, the father in a managementposition that allows him to be at home when his younger son gets out of school, and he ownstheir home. He has never paid the mother child support, although there was reportedly a courtorder to do so. However, he testified, without contradiction, that he gave the mother and the sonmoney directly to pay for what the son needed and often bought things for him. He hasconsistently taken advantage of his parenting time with the son, although he has not attended anyschool activities or communicated with his son's teachers. He testified that special educationalservices are available in the school district where he resides, but no details were provided.
Upon review, we find that while both parents appear to care deeply for their son, neither isfaultless. Family Court's determination to change primary physical custody to the father is,however, supported by a sound and substantial basis in the record and, as such, it will be upheld(see Matter of Passero v Giordano,53 AD3d 802, 803 [2008]). Although this was an established custody arrangement of some10 years, presumably requiring a substantial change in circumstances analysis, it was based uponthe parties' stipulation without a hearing when the father was 19 years old, having been thevictim of the mother's sexual abuse. Indeed, under these extraordinary circumstances, the parties'stipulation is entitled to little, if any, weight (see Matter of Burch v Willard, 57 AD3d 1272, 1272-1273 [2008]).
The record reflects that the son has learning disabilities for which he is in special educationalclasses and was doing "very poorly" in eighth grade, as Family Court correctly noted, and that hehas escalating behavioral problems. We accord great deference to Family Court's credibilitydeterminations (see Matter of Passero v Giordano, 53 AD3d at 803) in its finding that themother "does not assist [the son with his homework] to the extent he requires . . .[and has not] taken adequate steps to make sure that he has indeed sought the assistanceconsistent with his [Individual Education Plan]." With regard to the parties' testimony that theirson had reported being sexually abused by a family friend when he was younger—whichthe court concluded had likely occurred—and the disclosure by the father's younger sonthat the son had sexually abused him, the accuracy of which the court was unable todetermine,[FN1]the record reflects that the mother had taken the son intermittently to different counselors forcounseling but no proof was submitted as to whether this counseling had been adequate.However, the court justifiably concluded that the mother's testimony, including that regardingthe son's counseling and missed appointments and—in light of her past history—herfailure to pursue counseling for herself, show that "she has thus far failed to recognize theserious nature of sexual abuse and the serious [*3]nature of [the]sexual abuse she herself engaged in with respect to [the father]." Notably, the court found herless than straight forward and "extremely reluctant[ ]" to accept responsibility for her conducttoward the father.
While Family Court did not find sufficient evidence to support many of the allegationsagainst the mother,[FN2]its finding of a " 'sufficient change in circumstances reflecting a real need for change in order toinsure the continued best interest of the child' " is fully supported by the record (id. at803, quoting Matter of Van Hoesen v Van Hoesen, 186 AD2d 903, 903 [1992]).Although, unfortunately, little is known of the quality of the parties' respective homeenvironments, giving consideration to all relevant factors (see Matter of De Hamel v Porto, 22 AD3d 893, 894 [2005]; seealso Matter of Passero v Giordano, 53 AD3d at 803-804), Family Court had sound supportin the record for its conclusion that it was in the son's best interests to primarily reside with hisfather "to have adequate opportunity to mature and grow safely and under circumstances inwhich not only will he not be a victim again but [under which] he will not be an offenderhimself." Accordingly, the order should be affirmed.
Lahtinen, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: While Family Court'smodification order here required the father to obtain a psychological exam of his younger sonwith a report to be sent to the court and all parties prior to the change in custody to ensure thatthe son does not pose a danger to the younger son, the record does not reflect the results thereof.The father has not submitted a brief on this appeal and the Law Guardian's brief does not addressthat important mandate. The father and his wife declined to have a law guardian appointed forthe younger son.
Footnote 2: Family Court found insufficientevidence that the mother used excessive corporal punishment, subjected the son to domesticviolence, reacted inappropriately to a kissing incident between the son and a cousin or providedinadequate medical or dental care.