| Matter of Nikki O. v William N. |
| 2009 NY Slip Op 05715 [64 AD3d 938] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of Nikki O., Appellant, v William N., Respondent.(And Two Other Related Proceedings.) |
—[*1] Mitch Kessler, Cohoes, for respondent. Daniel S. Ross, Law Guardian, Middleburgh.
Rose, J. Appeal from an order of the Family Court of Schoharie County (Bartlett III, J.),entered March 4, 2008, which dismissed petitioner's applications, in three proceedings pursuantto Family Ct Act article 6, to, among other things, modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of ason born in 2001. By an order modifying custody and visitation entered September 26, 2006, theparties agreed to continue to share joint legal custody and the child's primary residence wasawarded to the father. In 2007, the mother filed three petitions. Although one is styled as aviolation petition, all three seek only the relief of modification of the 2006 order. They allegethat the father changed the child's physician without advising her and removed her name as acontact person with the child's healthcare providers, and that the child reported to a schoolcounselor and a child protective services caseworker that his 12-year-old stepbrother hadsexually abused him while he was in the father's care. The mother asserted that these eventsconstituted changed circumstances warranting the grant of sole custody to her. The fathercross-petitioned for sole custody, alleging, among other things, an increasing breakdown incommunication with the mother. At the fact-finding hearing, the mother testified as to thematters alleged in her petitions. She also relied upon a psychologist's evaluation of the child and[*2]the testimony of the child at the Lincoln hearing asdivulged to the parties by the court. At the close of the mother's direct case and upon the father'smotion, Family Court dismissed her petitions on the grounds that she had neither made a primafacie showing of a sufficient change in circumstances nor proven a violation by the father. Themother now appeals.
In determining the father's motion to dismiss, Family Court was required to accept themother's evidence as true, afford her the benefit of every favorable inference and resolve allcredibility questions in her favor (seeMatter of John SS. v Amy SS., 61 AD3d 1305, 1306 [2009]; Matter of David WW. v Laureen QQ.,42 AD3d 685, 686 [2007]; Matter of Le Blanc v Morrison, 288 AD2d 768, 770[2001]). Further, "[c]ontinued deterioration in the [parties'] relationship can be a significantchange in circumstances justifying a modification to sole custody" (Matter of Rosario WW. vEllen WW., 309 AD2d 984, 985-986 [2003]; see Posporelis v Posporelis, 41 AD3d 986, 989 [2007]; Matter of Smith v Miller, 4 AD3d697, 698 [2004]; Matter of Harper v Jones, 292 AD2d 649, 650 [2002]). Here, therecord makes it glaringly clear, even at this point in the proceedings, that the parties' continuedand pervasive acrimony, chronic litigation and failure to communicate with each other regardingthe child have made them unable to share the parental responsibilities of joint custody (see Matter of Grant v Grant, 47 AD3d1027, 1028 [2008]). Thus, if confirmed after a complete hearing, these circumstances wouldwarrant a termination of the prior award of joint custody.
Even more compelling, however, is the evidence that, since the prior order, the child wassexually abused while in the father's care. Through her testimony and a psychologist's evaluationreport, the mother presented evidence that the child had consistently reported being sexuallyabused by his stepbrother. Although Family Court questioned the child's credibility following theLincoln hearing because it suspected that the child had been coached, it did not reject thepsychologist's report and made no finding as to whether the abuse had occurred. Family Court,without explanation, divulged the child's testimony to the parties (see Matter of Hrusovsky vBenjamin, 274 AD2d 674, 676 [2000]) and failed to resolve all credibility questionsregarding the child's allegations in the mother's favor at this point, observing instead that thetruth might never be known. In light of the evidence corroborating the child's allegations ofabuse (see Matter of Loren B. v HeatherA., 13 AD3d 998, 1000 [2004], lv denied 4 NY3d 710 [2005]; see also Matter of Richard SS., 29AD3d 1118, 1121 [2006]), we find that the mother made a prima facie showing that, due tothe possible sexual abuse of the child, primary residence with the father may no longer be in thechild's best interests. Under these circumstances, Family Court erred in dismissing the mother'sfirst petition to the extent that it sought sole custody and the second petition alleging sexualabuse without determining the merit of the mother's claims and the best interests of thechild.[FN*]
Cardona, P.J., Kane, McCarthy and Garry, JJ., concur. Ordered that the order is modified, onthe law and the facts, without costs, by reversing so much thereof as dismissed petitioner's firstand second petitions for modification; respondent's motion to dismiss said petitions denied andmatter remitted to the Family Court of Schoharie County for further proceedings not inconsistentwith this Court's decision; and, as so modified, affirmed.
Footnote *: The third petition was basedupon an alleged second instance of sexual contact that was later recanted by the child and themother does not argue that it was improperly dismissed.