| Matter of Laurie II. v Raymond JJ. |
| 2009 NY Slip Op 08899 [68 AD3d 1170] |
| December 3, 2009 |
| Appellate Division, Third Department |
| In the Matter of Laurie II., Respondent, v Raymond JJ., Appellant.(And Another Related Proceeding.) |
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Spain, J.P. Appeal from an order of the Family Court of Montgomery County (Catena, J.),entered April 30, 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 mother) and respondent (hereinafter the father) are divorced andare the parents of a daughter (born in 1998). The mother commenced these proceedings in May2005[FN*]seeking a modification of a prior order of custody which had been entered after a full hearing inOctober 2002, granting the father sole legal and physical custody of the child, with scheduledparenting time to the mother. The father resided with his wife and her two sons, of whom thewife had custody. In her petition, the mother sought custody of the child based upon the child'sdisclosure that she had been forcefully sexually abused by her older stepbrother while residing atthe father's home and threatened by that stepbrother not to disclose the ongoing abuse. [*2]Thereafter, Family Court awarded the mother temporary physicalcustody. Following a full fact-finding hearing, which included a Lincoln hearing, thecourt, among other things, awarded the mother sole physical and legal custody of the child, withscheduled parenting time to the father at the father's home, but only when the stepbrother is notpresent in the home. The father now appeals.
The father's contention that the mother did not establish a sufficient change in circumstancesis patently without merit. Indeed, substantiated allegations of sexual abuse perpetrated by amember of the custodial parent's household constitute a sufficient change in circumstanceswarranting the alteration of an existing order of custody if modification is in the abused child'sbest interests (see Matter of Gary J. v Colleen L., 288 AD2d 720, 722 [2001]; Matterof Quick v Quick, 227 AD2d 666, 667 [1996]; see also Matter of John HH. v Brandy GG., 52 AD3d 879, 879-880[2008]). When assessing a child's best interests, the court considers, among other things, eachparent's relative competence and ability to provide for the child's intellectual and emotionaldevelopment, the child's wishes and the quality of the respective home environments (see Matter of Martin v Martin, 61AD3d 1297, 1298 [2009]; Matterof Valenti v Valenti, 57 AD3d 1131, 1133 [2008], lv denied 12 NY3d 703[2009]). "According great deference to the hearing court's credibility assessments and factualdeterminations based on that court's advantage of observing the witnesses firsthand, its decisionwill not be disturbed if it has a sound and substantial basis in the record" (Matter of Brady v Schermerhorn, 25AD3d 1037, 1038 [2006] [citations omitted]).
Here, Family Court heard ample, undisputed testimony that the child was repeatedly sexuallyabused over a 5½-month period by an older stepbrother who was residing with her in thefather's home. While the record confirms that neither the father nor the stepmother was aware ofthe ongoing sexual abuse, the father acknowledges that the abuse occurred in his home and thecourt concluded that it occurred on many occasions while he was home. The testimony at trial,the record of the Lincoln hearing and the court-ordered forensic evaluation amplyconfirm that the child's best interests would be served by living in the custody of the mother. AsFamily Court's determination is supported by a sound and substantial basis in the record, it willnot be disturbed.
We share Family Court's concern that the father—who appears to have dividedloyalties—had no plan to alter the stepbrother's living arrangements should he retaincustody of the child. Notably, in its proposed findings of fact and conclusions of law, the fathersought custody via an order permitting both children to continue to reside in the father'shousehold— although having "no contact" with one another—while each receivetherapy directed at eventually reuniting them. In our view, the court rationally rejected thatuntenable proposal.
Finally, in its decision and order, Family Court directs the father not to allow any contactbetween the child and the stepbrother, but then appears to permit the child and the stepbrother tobe together "during proper mental health treatment" without any specific parameters. Delegationof the decision as to when, if ever, these children should be together is improper (see Matter of Sloand v Sloand, 30AD3d 784, 787 [2006]). Accordingly, any specific plan to reunite these twochildren—even under therapy—unless agreed to by the parties and the attorney forthe child shall be crafted only with the approval of the court on formal application of eitherparent or the child's attorney.
Rose, Malone Jr., McCarthy and Garry, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as delegated to the child's therapist thediscretion to permit contact between the subject child and the stepbrother, and, as so modified,affirmed.
Footnote *: The mother later commenced aviolation proceeding that was dismissed by Family Court. The dismissal of the violation petitionis not at issue on this appeal.