| Matter of Neeley v Ferris |
| 2009 NY Slip Op 04338 [63 AD3d 1258] |
| June 4, 2009 |
| Appellate Division, Third Department |
| In the Matter of Sharon L. Neeley, Appellant, v Kevin T. Ferris,Respondent. |
—[*1] Kevin T. Ferris, Syracuse, respondent pro se. Heather Corey-Mongue, Law Guardian, Ballston Spa.
Kavanagh, J. Appeal from an order of the Family Court of Saratoga County (Hall, J.),entered May 27, 2008, which partially granted petitioner's application, in a proceeding pursuantto Family Ct Act article 6, for modification of a prior order of custody and visitation.
When petitioner (hereinafter the mother) and respondent (hereinafter the father) weremarried, they resided with their two children (born in 1995 and 1998) in the City of Syracuse,Onondaga County. After their divorce, the children resided with the mother and later, pursuant toan order entered in December 2002, the mother was granted full custody of the children and wasallowed to move with them from Syracuse to her new residence in Saratoga County. The father,in this same order, was granted the right to have the children stay with him at his residence inSyracuse on alternating weekends throughout the school year, as well as during the annualFebruary winter recess.[FN1]The children would alternate time between the parents during [*2]other periods when school was not in session during the schoolyear.
In October 2007, the mother filed this petition seeking a substantial modification of thevisitation schedule as incorporated in the December 2002 order. Specifically, she sought an orderthat would allow the children to spend all but two weeks of the summer with her, and one weekin Boy Scout camp. She asked that visitation during the annual February winter recess period bealternated each year between the parents, and that the father be required to share in the cost, aswell as the responsibility, for transporting the children between Saratoga County and Syracusefor visitation. She also asked Family Court to impose certain restrictions on the father's conductwhile the children resided at his home in Syracuse. Specifically, she asked that he not bepermitted to display any firearms in the home while the children were present and that a limit beplaced on their access to television and video games. Finally, the mother asked that the father berequired to communicate with her regarding the condition of the children at the end of eachvisitation period.
During the fact-finding hearing held on this petition, the father agreed not to display anyfirearms in the home while the children were present and to communicate with the mother byletter after each visitation period. He also promised that the children would keep allappointments they had with their psychiatrist and clinical social worker while they were in hiscare. After the hearing, Family Court issued an order that further modified the existingarrangement by directing that the children begin their summer visitation period with the father onthe Sunday after the school year ended, and that each child be allowed to attend Boy Scoutcamp, with the week devoted to camp being allocated to each parent's visitation period on analternating basis each year. The court also extended the father's weekend visitation with thechildren to include any holiday that fell on the weekend and directed that he drive the childrenback to the Saratoga County area at the end of one weekend visit each month during the schoolyear. The mother now appeals.
The mother takes exception to Family Court's refusal to further modify the visitationschedule as it now exists when the children are on summer vacation. An order of visitationcannot be modified unless there has been a sufficient change in circumstances since the entry ofthe prior order which, if not addressed, would have an adverse effect on the children's bestinterests (see Matter of Chase vBenjamin, 44 AD3d 1130, 1131 [2007]; Matter of Vickery v Vickery, 28 AD3d 833, 833 [2006]). Here,Family Court found that a change in circumstances had occurred since the entry of the priororder due to the impact the increase in the price of gasoline had on the cost incurred by themother in transporting the children for their visitation, as well as the demands placed on eachchild by having to travel so often between Syracuse and Saratoga County and the impact thevisitation schedule had, in particular, on the emotional and medical needs of the parties' youngestchild. In that regard, Family Court fashioned an order that sought to adjust the visitationschedule to address these concerns and any resulting change in each child's circumstance.However, the mother argues that the changes made by Family Court did not go far enough, andthat the children's needs can only be reasonably addressed by an order [*3]that requires them to spend the majority of their summer vacationin her care at their home in Saratoga County.
The paramount concern in any custody or visitation determination is the best interests of thechildren (see Matter of Laware vBaldwin, 42 AD3d 696, 697 [2007]; Matter of Filippelli v Chant, 40 AD3d 1221, 1222 [2007]). Thisvisitation schedule has been in place for five years and, as designed, constitutes a constructiveeffort to ensure that each parent has meaningful contact during the year with their children. Withthat objective in mind, the schedule provided for the children to spend much of the school yearwith their mother and a good part of their summer vacation with their father. The social,academic and emotional issues that each child presently experiences as identified by the motherare not new and, during the time that this schedule has been in place, have been effectivelytreated with medication and counseling. In addition, Family Court's order adopts, in largemeasure, the recommendation of the children's mental health providers by allowing each parentmeaningful time with their children and, at the same time, ensures that each child attends campin the summer, regularly receives their prescribed medications and continues to treat with theirtherapist throughout the entire year. Given the modifications made by Family Court to theexisting schedule, there is no reason to conclude that further changes—other than thosethat are noted below—are needed to protect the children's best interests (see Tait v Tait, 44 AD3d 1142,1143 [2007]; Matter of Robertson vRobertson, 40 AD3d 1219, 1220-1221 [2007]; Matter of Vickery v Vickery, 28AD3d at 833).
In that regard, we do agree with the mother that the children should be allowed to return totheir home in Saratoga County from summer vacation earlier than the last day before the start ofthe school year as called for in the existing order. Given that more than one day is needed toallow the mother to make adequate preparations for each child's return to school, the ordershould be altered to provide for their return to the mother's home in Saratoga County no laterthan five days prior to the commencement of the new school year. Further, while we concur withthe decision to allow the children to attend Boy Scout camp each summer, that week should notcount against any time they might otherwise spend with the mother during this period. Such anarrangement would seriously compromise the amount of time that she would have with thechildren during the summer and, as such, is not in their best interests (see generally Matter ofLaware v Baldwin, 42 AD3d at 697; Matter of Horike v Freedman, 37 AD3d 978, 980 [2007]).Therefore, the order will be amended so that the mother's time with the children during theirsummer vacation will not be affected by their attendance at Boy Scout camp.
The mother takes issue with Family Court's decision to provide the father with additionaltime with the children on those weekends that fall on a holiday. Even though the father did notrequest such an extension, we do not believe that Family Court's decision in that regard lacked "asound and substantial basis in the record and discern no basis for disturbing its broad discretionin fashioning the subject schedule" (Tait v Tait, 44 AD3d at 1143 [citation omitted]).
The mother further claims that Family Court erred by refusing to order that the children'sannual February winter recess alternate each year between the parents. The mother argues thatthe court failed to incorporate such a change in its final ruling, even though it made a factualfinding that all recesses or vacations taken by the children during the school year should result intheir being placed with the parents on an alternating basis. However, a clear reading of thetranscript indicates that the court, in making this statement, was merely summarizing themother's position on this issue, and its ruling, when viewed in its proper context, was completely[*4]consistent with its factual findings and had a sound andsubstantial basis in the record (see Matter of Bjork v Bjork, 58 AD3d 951, 952 [2009]).
The mother also appeals from Family Court's refusal to require that each party share equallyin the cost, as well as the responsibility, for transporting the children to facilitate visitation withtheir father. The court did modify its prior order and now requires the father to assume theresponsibility of returning the children to the mother's home in Saratoga County once eachmonth during the school year. It refused to require the father to assume more of thisresponsibility because the mother not only moved the children from Syracuse to Saratoga Countyin violation of a prior court order, but, also, as a condition to her being allowed to reside with thechildren in Saratoga County, the mother agreed to provide "transportation to implement theweekend visitation" with the father. Under the circumstances, nothing has been presented thatwould warrant any additional changes in this arrangement as it is now set forth under the existingorder (see generally Matter of Williamsv Reynolds, 15 AD3d 799, 799-800 [2005], lv denied 5 NY3d 701 [2005]).
We do, however, find that the order should be amended as to require the father to use alocation closer to the mother's residence when he returns the children to Saratoga County onceeach month during the school year. Because the location chosen by Family Court is on the StateThruway, it results in the children spending an additional hour in the car in travel time thanwould otherwise be required if another location were chosen. While we realize that the father isnot responsible for transporting the children under the terms of the original custody order, wenote that he did not appeal from Family Court's order directing him to partially share in thisresponsibility and, further, that a slight modification in this arrangement is clearly in thechildren's best interests.[FN2]
Mercure, J.P., Spain, Malone Jr. and McCarthy, JJ., concur. Ordered that the order ismodified, on the facts, without costs, by directing that the children's attendance at Boy Scoutcamp for one week each summer shall not affect petitioner's week of summer visitation, thechildren shall be returned to petitioner's care at the end of each summer vacation no later thanfive days prior to the commencement of the school year, and respondent shall drop off thechildren at the McDonald's restaurant closest to petitioner's residence in Saratoga County, and, asso modified, affirmed.
Footnote 1: The father was also awardedvisitation with the children for the entire summer, beginning on the first day after the school yearended and continuing until the day prior to the school year commenced in the fall. The childrenwould spend one week and every other weekend with the mother, until they had to return toSaratoga County to begin the school year. In April 2004, the father had brought a violationpetition that resulted in a May 2004 amended order.
Footnote 2: The mother's suggestion of aMcDonald's restaurant located nearest her home would effectively address this issue and satisfythis requirement.