| Barbara ZZ. v Daniel A. |
| 2009 NY Slip Op 05712 [64 AD3d 929] |
| July 9, 2009 |
| Appellate Division, Third Department |
| Barbara ZZ., Respondent, v Daniel A., Appellant. (And SixRelated Proceedings.) |
—[*1] Edwin M. Adeson, Glens Falls, for respondent. Suzanne L. Latimer, Law Guardian, Latham.
Spain, J. Appeal from an order of the Supreme Court (Breen, J.), entered July 23, 2008 inWarren County, which, among other things, awarded plaintiff custody of the parties' son.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) married in 1995and lived with the mother's two daughters—ages nine and three—from anotherrelationship. Thereafter, the parties had two children, Elizabeth ZZ. (born in 1996) and DanielZZ. (born in 2000) (hereinafter the children). When the parties separated in 2002 or 2003, thefather moved into his parents' home in the Town of Stillwater, Saratoga County, where hecontinues to reside. The children lived with the mother, who had primary physical custody, andtheir older half sisters, in an apartment in the Village of Ballston Spa, Saratoga County, while thefather had regular visitation.
In August 2006, the parties agreed in Family Court, Saratoga County, to a shared alternatingweekly joint custody arrangement; the mother then moved to the Town of Warrensburg, WarrenCounty to live with her new boyfriend. When she experienced transportation problems, themother ultimately agreed to the children living primarily with the [*2]father and that she would have alternating weekend time with thechildren, who were having difficulty adjusting to her move. In February 2007, Family Courtentered a new order, upon the parties' consent, awarding them joint legal custody of the childrenwith primary physical custody to the father and weekend and midweek parenting time with themother. In March 2007, Family Court, on the Law Guardian's motion, temporarily changedphysical custody of Elizabeth to the mother, and, in July 2007, the mother commenced thisdivorce action in Supreme Court in Warren County. During this ongoing custody battle, theparties each filed modification of custody petitions and violation petitions, and the mother filed afamily offense petition, and all such proceedings were removed to Supreme Court. Prior to trial,Supreme Court issued an October 15, 2007 temporary order of custody and visitation providingfor both children to reside with the father, with visitation to the mother. At the opening of thetrial the mother consented to the court granting custody of Elizabeth to the father because thechild was estranged from her. The mother indicated that she would engage in therapeuticcounseling with Elizabeth, and desired full visitation with her as soon as it could beaccomplished.
During the trial, Supreme Court met with the children in a Lincoln hearing, andultimately issued the subject custody and parenting order which granted sole legal and primaryphysical custody of Daniel, then age seven, to the mother and, as consented to by the mother,sole legal and physical custody of Elizabeth, then age 11, to the father. The order provided forweekend parenting time in which the children, together and individually, would spend time witheach parent, and alternating weekly time during the summers. That order was incorporated butnot merged into the parties' subsequent judgment of divorce, and the father now appealschallenging the award of custody of Daniel to the mother.[FN1]
A review of the testimony and evidence submitted at this trial reveals a substantial change incircumstances demonstrating an imperative need for immediate change to ensure the bestinterests and health of the children (seeMatter of Colwell v Parks, 44 AD3d 1134, 1135 [2007]). Further, the recordoverwhelmingly provides a sound and substantial basis for Supreme Court's determinationgranting the mother sole legal and primary physical custody of Daniel and for not keeping thechildren together (see Matter of Bush vStout, 59 AD3d 871, 873 [2009]).
As Supreme Court's meticulously detailed and exhaustive decision and order accuratelysummarizes, the children have been emotionally scarred by the constant fighting between theparties, who have exhibited "such immaturity and poor judgment" that the court rightly saw fit toexpressly warn them that continuing such behaviors would result in an investigation of neglect ofthe children and, if appropriate, a removal to foster care, a sentiment echoed by the children'sLaw Guardian of six years. The record reflects that the children have endured years of strife,upheaval, instability, family dysfunction and emotional neglect, resulting in counseling andtherapy, psychiatric diagnoses and hospitalizations, suicidal gestures, child protectiveinvestigations, and significant behavioral problems. Aggression and other unhealthy behaviorsdeveloped in the relationship between the children who, despite their obvious love for oneanother and for both parents, have been impaired by the parties' poor parenting, particularly that[*3]of the father. A psychologist evaluated the parties, themother's boyfriend and the children, reviewed the children's therapy and mental health historyand observed the children with the parties. Her report confirms Supreme Court's assessment ofthe parties' impaired behavior and the resulting serious consequences to the children.
To begin, given the parties' embattled custodial history and testimony conceding their totalinability to communicate or cooperate on matters concerning the children, joint custody ofDaniel is out of the question (see Matterof Edwards v Rothschild, 60 AD3d 675, 676-677 [2009]). On the issue of Daniel's bestinterests, we accord deference to Supreme Court's assessment that the mother's testimony wasmore credible than that of the father (see Matter of Colwell v Parks, 44 AD3d at1135-1136). With regard to the father's claim that he is better able to handle Daniel's needs, his"past performance" (Matter of DeHamel v Porto, 22 AD3d 893, 894 [2005]) does not support that assertion. The record isreplete with instances in which the father unjustifiably denied Daniel court-ordered parentingtime or telephone contact with his mother, created stress at turnover times, attempted to alienatehim from his mother, and discussed inappropriate adult matters (including this litigation) withhim, causing him to be emotionally conflicted. Examples of his behavior include refusing toprovide the mother with Daniel's medication, denying the mother any time with the childrenduring the 2006 winter holidays, and dumping the children's belongings in the parking lot at themother's residence in response to a court-ordered custody change. He fails to understand that hisobstructionist way of life has caused serious behavioral problems and a deterioration in theemotional health[FN2]of the children and contributed to the problems in their sibling relationship.
With regard to the mother, the evidence supports the finding that Daniel is very bonded toher and that, when she had primary custody, she encouraged his relationship with the father,abided by court orders and regularly accommodated the father's requests for additional time. Shealso has a degree of appreciation for the stress that the parties' behavior and custody battle hashad on the children, and has diligently pursued counseling for them since 2002. Indeed, she isnot faultless and has made bad choices that have contributed to this chaotic situation, includingabruptly moving an hour away in 2006 to live with her boyfriend, making the already tumultuousarrangement even worse for the children. However, giving due consideration to all relevantfactors, including Daniel's good relationship with the mother's boyfriend, the parties' pastperformance and their capacity to guide Daniel's development, address his mental health andemotional needs, encourage his relationship with the other parent and abide by court orders, aswell as the psychological evaluations and the Law Guardian's well-informed advocacy (seeid. at 894), we find that the determination that Daniel's best interests are served by awardingsole legal and primary physical custody to the mother has a sound and substantial basis in therecord and should not be disturbed.
Further, while "siblings should generally be kept together, this rule is not absolute and maybe overcome where [as here] . . . 'the best interest of each child lies with a differentparent' " (Matter of Jelenic v Jelenic, 262 AD2d 676, 677 [1999], quoting Matter ofCopeland v Copeland, 232 AD2d 822, 823 [1996], lv denied 89 NY2d 806 [1997]).The record reflects that the children often fought and that Elizabeth dominated and often hitDaniel, repeating dysfunctional behavior patterned by her parents. Supreme Court rationallyconcluded that it would be in [*4]Daniel's best interests to livewith his mother separately from Elizabeth while regularly spending time with her duringweekend and summer visitations. Elizabeth was estranged from her mother and had refused allcontact or calls from her since September 2007 and wished to remain with the father. Each of thechildren, as well as their relationships with one another and with their parents, has sufferedimmeasurably during this ongoing struggle between the parties. We find that, under theseunfortunate circumstances, the court rationally concluded that Daniel's best interests lie in livingseparately from his sister.
Finally, contrary to the father's claim on appeal, we find that the Law Guardian appropriatelyand tirelessly represented each of the children, with whom she has had close, activeattorney-client relationships for over six years. At all stages, the Law Guardian helped themeffectively express their wishes to Supreme Court, while zealously advocating separately fortheir particular wishes and interests (see Matter of Carballeira v Shumway, 273 AD2d753, 755-756 [2000], lv denied 95 NY2d 764 [2000]; see also Family Ct Act§ 241). The Law Guardian made innumerable efforts to monitor the children's well-beingand communicate with the parents, mediated between them and, over the years, negotiatedvarious custodial and parenting arrangements to address the serious ongoing and escalatingproblems experienced by the children. Contrary to the father's claim, raised for the first time onappeal, we see no error in the Law Guardian representing both children given the absence of anypotential conflict of interest (see Corigliano v Corigliano, 297 AD2d 328, 329 [2002];Matter of Rosenberg v Rosenberg, 261 AD2d 623, 624 [1999]; Matter of Zirkind vZirkind, 218 AD2d 745, 746 [1995]; see also 22 NYCRR 1200.24 [c]).
The father's remaining claims have been considered and found to lack merit.
Peters, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: Although the father onlyappealed from the custody and parenting order rather than the subsequent judgment of divorceincorporating that order, we deem the appeal as taken from the judgment of divorce as well(see Harrington v Harrington, 300 AD2d 861, 862 [2002]).
Footnote 2: In June 2007, Daniel wasadmitted to a mental health facility after threatening to burn down his father's house.