| Matter of Perry v Korman |
| 2009 NY Slip Op 04502 [63 AD3d 1564] |
| June 5, 2009 |
| Appellate Division, Fourth Department |
| In the Matter of Maurice Perry, Jr., Respondent, v Jamie L.Korman, Appellant. Susan B. Marris, Law Guardian, Appellant. |
—[*1] Paul M. Deep, Utica, for respondent-appellant. Richard P. Ferris, Utica, for petitioner-respondent.
Appeals from an order of the Family Court, Oneida County (Brian M. Miga, J.H.O.), enteredAugust 8, 2008 in a proceeding pursuant to Family Court Act article 6. The order, inter alia,transferred primary physical custody of the parties' child to petitioner.
It is hereby ordered that the order so appealed from is unanimously reversed in the exerciseof discretion without costs, the petition is denied, and the matter is remitted to Family Court,Oneida County, for further proceedings in accordance with the memorandum, and
It is further ordered that all proceedings to enforce the order of this Court are stayed pendingthe conclusion of the school year.
Memorandum: Respondent mother appeals from an order transferring physical custody ofthe parties' nine-year-old daughter to petitioner father. The parties have had joint custody of thechild with primary physical custody with the mother since August 2000 pursuant to an orderentered upon the consent of the parties. " 'It is well established that alteration of an establishedcustody arrangement will be ordered only upon a showing of a change in circumstances whichreflects a real need for change to ensure the best interests of the child' " (Matter of Amy L.M.v Kevin M.M., 31 AD3d 1224, 1225 [2006]). Here, it is undisputed that the mother hadmoved six times between the years 2000 and 2007, as a result of which the child had attendedthree schools over a period of five years. Family Court therefore properly determined that asufficient change of circumstances existed to warrant a review of the custody arrangement. Wenevertheless conclude that the court improvidently exercised its discretion in determining thatthe best interests of the child warranted a transfer of primary physical custody to the father (see Matter of Kristi L.T. v AndrewR.V., 48 AD3d 1202, 1204 [2008], lv denied 10 NY3d 716 [2008]).
As we set forth in Matter of Maherv Maher (1 AD3d 987, 988-989 [2003]), " '[a] change of custody should be made only ifthe totality of the circumstances warrants a change that is in the best interests of the child'. . . 'Among the factors to be considered are the quality of the home [*2]environment and the parental guidance the custodial parentprovides for the child' . . . ." The evidence presented at the hearing on the petitionestablished that the mother had moved with her three children into her parents' home because thetrailer park in which she lived had been sold. The child's grandmother cared for the child and themother's other children while the mother worked. The mother intended to live with the father ofher other children and had been looking for housing that would permit the child to continue toattend the same school in which the child was enrolled at the time of the hearing. Although thefather testified that he filed the petition seeking a change of primary physical custody becausethe mother moved with the child into her parents' home, he could not identify any negativeimpact on the child as a result of the move. We conclude that the evidence establishes that themother has provided proper guidance for the child (see id. at 989).
We further conclude that, although both parties are able to provide for the child's emotionaland intellectual development (see id.), the evidence established that the child has alearning disability, that the mother has participated in the child's individualized educationprogram, and that the father has not attended the meetings with respect to that program. Theevidence further established that, although the father was opposed to the school'srecommendation that the child repeat first grade, he failed to articulate the basis for hisopposition. In addition, despite the evidence that the child has a loving relationship with bothparties, we note that the father refused to permit her to visit his home for a period of severalweeks because of her "attitude." Both parties are able to provide for the financial needs of thechild and, although both parents are fit to care for the child, the child has always lived with themother (see id.). We further note that the order necessitated the separation of the childfrom her two half-sisters, to whom she was very attached (see generally Matter of Brown v Marr, 23 AD3d 1029, 1030[2005]; Fox v Fox, 177 AD2d 209, 210 [1992]), but that she also has a half-brother at thefather's home.
Thus, based on the evidence presented at the hearing, we cannot agree with the court that thebest interests of the child warrant a change in her primary physical custody. Therefore, in theexercise of our discretion, we reverse the order, deny the petition, and remit the matter to FamilyCourt to fashion an appropriate visitation schedule for the father. Finally, in order to allow thechild to complete the school year, we stay all proceedings to enforce our order pending theconclusion of the school year. Present—Scudder, P.J., Smith, Fahey, Carni and Pine, JJ.