| Matter of Williams v Williams |
| 2009 NY Slip Op 07534 [66 AD3d 1149] |
| October 22, 2009 |
| Appellate Division, Third Department |
| In the Matter of Matthew Williams, Respondent, v Tara Williams,Appellant. (And Another Related Proceeding.) |
—[*1] James R. Hickey Jr., Ithaca, for respondent. Daniel Gartenstein, Law Guardian, Kingston.
Peters, J. Appeal from an order of the Family Court of Tompkins County (Sherman, J.),entered July 8, 2008, which, among other things, granted petitioner's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents ofone child (born in 2003). Pursuant to a February 2006 stipulated order, the parties shared jointcustody of the child, with the mother having primary physical custody and the father havingvisitation on alternating weekends. Thereafter, each petitioned for sole custody of the child.Following a fact-finding hearing, Family Court found a change of circumstances sufficient towarrant a modification and that the child's best interests would be served by granting the fathersole custody. The mother now appeals, and we affirm.
"[A] parent seeking to modify an existing custody order bears the burden of proving thatthere has been a sufficient change in circumstances since the entry of that order warranting amodification thereof in the child['s] best interests" (Matter of Siler v Wright, 64 AD3d 926, 928[*2][2009]; see Matter of Langley v Spano, 58 AD3d 1082,1082-1083 [2009]). Here, the record supports Family Court's determination that the parties areno longer able to work and effectively communicate with one another for the sake of their child.The parties' relationship has deteriorated to a point where they were antagonistic and embattled,on one occasion requiring police intervention to settle a dispute as to the extent of the father'sholiday visitation. Moreover, the parties themselves acknowledged their inability tocommunicate effectively with one another and to cooperate in decisions that relate to the child'swelfare and development, thus making continued joint custody unworkable (see Matter of Omahen v Omahen, 64AD3d 975, 976 [2009]; Matter ofGoldsmith v Goldsmith, 50 AD3d 1190, 1191 [2008]; Matter of Grant v Grant, 47 AD3d1027, 1028 [2008]).
With joint custody no longer feasible, Family Court was then required to determine whatcustodial arrangement would promote the best interests of the child (see Matter of Omahen vOmahen, 64 AD3d at 976; Matterof Eck v Eck, 33 AD3d 1082, 1083 [2006]). Relevant factors to be taken into accountinclude "maintaining stability in the child's life, the wishes of the child, the quality of the homeenvironment, each parent's past performance, relative fitness and ability to guide and provide forthe child's intellectual and emotional development, and the effect the award of custody to oneparent would have on the child's relationship with the other" (Matter of Zwack v Kosier, 61 AD3d 1020, 1022 [2009] [internalquotation marks and citations omitted], lv denied 13 NY3d 702 [2009]; see Matter of Bush v Stout, 59 AD3d871, 872 [2009]). "Although this Court's authority in custody matters is as broad as thatentrusted to Family Court, Family Court's findings and credibility determinations are accordedgreat deference and will not be disturbed on appeal absent a sound and substantial basis in therecord" (Matter of Eck v Eck, 57AD3d 1243, 1244 [2008] [citation omitted]; see Matter of Bronson v Bronson, 63 AD3d 1205, 1206 [2009]; Matter of Colwell v Parks, 44 AD3d1134, 1135-1136 [2007]).
Upon our review, we find Family Court's decision to award custody to the father to besupported by the record. He maintains a stable residence with his current wife and is gainfullyemployed as a punch press operator, while the mother is unemployed and currently obtains all ofher financial means from welfare payments, child support and a boyfriend who does not residewith her. Moreover, the mother, who has three children, has moved twice since the prior order ofcustody and was the subject of an indicated report due to the conditions inside one of herresidences. Family Court also found that the mother was deficient in addressing the child'smedical and developmental needs and failed to insure proper hygiene and clothing for the child.Specifically, testimony from the father, his wife and his wife's mother revealed that the childfrequently appeared for visitation unclean, unkempt and wearing clothes that did not fit him. Theproof also showed that the mother twice delivered the child to the father with a severe rash,requiring the father to obtain medical treatment. On several other occasions, the child arrivedwith head lice. Although he was nearly five years old at the time of the fact-finding hearing, thechild was not fully toilet trained, resulting in his rejection from prekindergarten placement.Family Court further found that, despite expressed and valid concerns by the father and his wiferegarding the child's speech development, the mother consistently refused to allow the child tobe evaluated for developmental delays. While the father was not without his own shortcomings,in light of the totality of the circumstances, and according appropriate deference to FamilyCourt's findings and credibility assessments (see Matter of Grant v Grant, 47 AD3d at1029), we find that the award of sole custody to the father has a sound and substantial basis inthe record.
Finally, the mother argues that a transfer of custody to the father will result in the [*3]separation of the child from his two half siblings, noting a generalreluctance of courts to separate siblings (see e.g. Matter of Ebert v Ebert, 38 NY2d 700,704 [1976]). "Although siblings should be kept together if possible, that rule has become morecomplicated due to changing family dynamics" (Matter of Tavernia v Bouvia, 12 AD3d 960, 962 [2004] [citationomitted]; see Matter of Dunaway vEspinoza, 23 AD3d 928, 930 [2005]). While there was evidence of a loving bondbetween the children, the best interests of the mother's two other children, each of whom had adifferent father, was not before Family Court, and it was in the best interests of the childinvolved in this proceeding to be in the custody of the father (see Matter of Esterle vDellay, 281 AD2d 722, 727 [2001]; see also Matter of Dunaway v Espinoza, 23AD3d at 930).
Cardona, P.J., Kavanagh, Stein and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.