| Matter of Rue v Carpenter |
| 2010 NY Slip Op 00598 [69 AD3d 1238] |
| January 28, 2010 |
| Appellate Division, Third Department |
| In the Matter of John Rue, Sr., Respondent, v Tammy Carpenter,Appellant. |
—[*1] Thomas, Collison, Meagher & Seiden, Endicott (Daniel L. Seiden of counsel), forrespondent. Feyi O. Gaji, Law Guardian, Binghamton.
Cardona, P.J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered August 28, 2009, which granted petitioner's application, in a proceeding pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the parents oftwo daughters (born in 1999 and 2000). Pursuant to an August 2003 order entered uponstipulation, the parties shared joint legal custody, with the mother having primary physicalcustody and the father having visitation, among other times, on alternate weekends. In November2007, the father commenced this proceeding seeking primary physical custody of the children,alleging an unstable and abusive home environment with the mother. Following fact-finding andLincoln hearings, Family Court granted the father primary physical custody and thisappeal by the mother ensued.[FN*][*2]
Modification of an established custody arrangementrequires "a showing of sufficient change in circumstances reflecting a real need for change inorder to insure the continued best interest of the child" (Matter of Martin v Martin, 61 AD3d 1297, 1298 [2009] [internalquotation marks and citation omitted]). Here, the record is replete with evidence demonstratingsuch change in circumstances since the 2003 custody order, with respect to both the mother andthe children. Specifically, the mother has had a long-term tumultuous relationship with herlive-in boyfriend, who has a history of mental health issues. She admitted at the hearing that theboyfriend subjected her to domestic abuse in front of the children and the record establishes thathe belittled the children. The police were called to the residence numerous times due to theseincidents, resulting in the boyfriend being arrested on two occasions and charged with, amongother things, endangering the welfare of the subject children. Although the mother testified thatshe no longer lived with the boyfriend, she admitted that shortly after that relationship ended, shebegan an intimate relationship with his brother.
Additionally, along with the evidence of the generally unruly behavior of both children, therecord establishes that the younger daughter regularly fell asleep during school and hadnumerous absences in a single academic year. Furthermore, her inability "to accept and obey theschool rules" ultimately led to her expulsion. The record demonstrates that she was aggressive atschool as well as at home. The foregoing amply supports Family Court's finding that there was achange in circumstances sufficient to determine whether a modification of custody is in thechildren's best interests.
In deciding whether a change in custody is warranted, the parties' stipulated custodyarrangement is one factor to be considered, "along with the quality of the respective homeenvironments, the child's wishes, the length of time the present custody arrangement has been inplace and each parent's past performance, relative competence and capacity to provide for anddirect the child's development" (Matterof De Hamel v Porto, 22 AD3d 893, 894 [2005]; see Matter of Eck v Eck, 57 AD3d 1243, 1244 [2008]). FamilyCourt's determination will not be disturbed if supported by a sound and substantial basis in therecord (see Matter of Eck v Eck, 57 AD3d at 1244).
Here, giving deference to Family Court's credibility determinations (see id.), weagree with Family Court that transfer of primary physical custody to the father is warranted. Tothat end, the mother has moved twice without prior notice to the father, resulting in a 45-minutecommute for the father to exercise his visitation. Evidence pertaining to the environment in themother's home established that, in addition to constantly fighting with her former boyfriend, themother regularly screamed at the children, used vulgar language and made graphic sexualremarks in their presence. Furthermore, she disparaged the father in front of the children and wasnot forthcoming when he requested information about the children's medical condition,particularly as it related to their seizure disorders. Testimony also established that the mother,who also has other children in the home, is struggling financially.
In contrast, the father currently lives alone and has sufficient means of support. He regularlyexercised his visitation with his children and, according to testimony in the record, appropriatelyinteracted with, as well as disciplined, the children. Although the record demonstrates certainshortcomings on the part of the father, under the totality of circumstances [*3]herein (see Eschbach v Eschbach, 56 NY2d 167, 173-174[1982]), a sound and substantial basis in the record exists to support Family Court'sdetermination and, therefore, it will not be disturbed.
Rose, Malone Jr., Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: We note that a digital taperecording of a conversation between the parties was entered into evidence as petitioner's exhibitNo. 1; however, it appears that such evidence was subsequently misplaced and therefore thisCourt was unable to review that recording.