| Matter of Omahen v Omahen |
| 2009 NY Slip Op 05725 [64 AD3d 975] |
| July 9, 2009 |
| Appellate Division, Third Department |
| In the Matter of James L. Omahen, Appellant, v Sueko Omahen,Respondent. (And Four Other Related Proceedings.) |
—[*1] Butler & Butler, P.C., Vestal (Matthew C. Butler of counsel), for respondent. Lisa A. Natoli, Law Guardian, Norwich.
Malone Jr., J. Appeal from an order of the Family Court of Delaware County (Becker, J.),entered May 22, 2008, which, among other things, granted respondent's application, in fiveproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) were married in1985 and are the parents of a daughter and a son (born in 1993 and 1995, respectively). Theparties separated in 1998, without a written agreement, and the mother was subsequently granteda divorce, but the judgment of divorce was reversed on appeal (Omahen v Omahen, 289AD2d 890 [2001], lv denied 97 NY2d 613 [2002]). In May 2007, following several priorcustody orders and in resolution of the father's petition to modify custody, Family Court enteredan order upon stipulation whereby the parties shared legal custody of the children, with themother having primary physical custody of the children and the father having substantialparenting time. The father commenced several proceedings in June 2007, alleging that "[j]ointcustody ha[d] completely broke[n] down" and seeking sole custody of the children. He alsosought a finding that the mother had violated Family Court's custody order by interfering withhis visitation with [*2]the daughter. The mother filed a crosspetition seeking sole custody of the children as well. Following a fact-finding hearing andLincoln hearing with both children, the court awarded sole custody to the mother anddismissed the father's violation petitions. The father appeals and we affirm.
An existing custody arrangement will be modified only where circumstances have changedsuch that modification is necessary to further the children's best interests (see Matter of Zwack v Kosier, 61AD3d 1020, 1021 [2009]; Matter of Langley v Spano, 58 AD3d 1082, 1082-1083[2009]; Matter of Cobane vCobane, 57 AD3d 1320, 1321-1322 [2008], lv denied 12 NY3d 706 [2009]).Here, such a change was demonstrated by the parties' manifest inability to cooperate, even forthe sake of their children. "[W]here the relationship between joint custodial parents has sodeteriorated as to make cooperation for the good of the children impossible, a significant changein circumstances has been demonstrated and modification of the prior custody agreement iswarranted" (Matter of Ferguson vWhible, 55 AD3d 988, 990 [2008]; see Matter of Zwack v Kosier, 61 AD3d at1021; Matter of Bjork v Bjork, 58 AD3d 951, 952 [2009], lv denied 12 NY3d708 [2009]). The father admitted that "it is without saying that the [parties] cannot get along oragree on the best interests of the child[ren] to continue as joint custody parents" and the motherunequivocally shared that view, which was also substantiated by the record.[FN*]
Having determined that a sufficient change in circumstances had occurred, Family Court wasrequired to consider the children's best interests in crafting a new arrangement (see Matter ofLangley v Spano, 58 AD3d at 1083; Matter of Goldsmith v Goldsmith, 50 AD3d 1190, 1191 [2008]).Among the relevant factors to be taken into account are stability in the children's lives, eachparent's home environment, each parent's past performance and ability to provide for thechildren's intellectual and emotional development, and the children's wishes (see Matter ofZwack v Kosier, 61 AD3d at 1022; Matter of Miller v Murray, 61 AD3d 1295, 1296 [2009];Matter of Fletcher v Young, 281 AD2d 765, 767 [2001]). According due deference toFamily Court's credibility determinations, we agree that the children's best interests will beserved by awarding the mother sole legal custody (see Matter of Zwack v Kosier, 61AD3d at 1022; Matter of Langley v Spano, 58 AD3d at 1083). Among other reasons, thechildren have lived with their mother since the parties' separation, and she has proven her abilityto provide a nurturing environment for the children.
Next, we are unpersuaded that Family Court abused its discretion in dismissing the father'spetitions alleging that the mother violated the court's previous custody order (see Matter of Aurelia v Aurelia, 56AD3d 963, 964 [2008]). To support a civil contempt finding, the petitioner must show byclear and convincing evidence "that there was a lawful court order in effect that clearlyexpressed an unequivocal mandate, that the person who allegedly violated the order had actualknowledge of its terms, and that his or her actions or failure to act defeated, [*3]impaired, impeded or prejudiced a right of the moving party"(id.; see Labanowski vLabanowski, 4 AD3d 690, 694 [2004]). Significantly, the petitioner must show that analleged violation was willful (see Matter of Cobane v Cobane, 57 AD3d at 1322-1323;Matter of Aurelia v Aurelia, 56 AD3d at 964). Here, Family Court attributed the missedvisitations and other alleged violations to the daughter's resistance. The mother testified that shehad tried to encourage the daughter to visit the father, but she would simply refuse. Under thesecircumstances, and according due deference to its credibility determinations (see Matter ofCobane v Cobane, 57 AD3d at 1323), the court did not abuse its discretion in finding thatthe mother did not willfully violate the custody order.
Contrary to petitioner's suggestion, the record does not support a finding that the LawGuardian was biased against him.
Spain, J.P., Kane, Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Typically, the change incircumstances analysis looks only as far back as the last custody order, which in this case wasentered in May 2007. However, considering the enduring pattern of behavior between the partiesand the children's interest in a final resolution to the situation, to the extent that Family Courtconsidered events preceding May 2007, the court did not abuse its discretion (see Matter ofMcGovern v McGovern, 58 AD3d 911, 913 [2009]).