| Matter of Card v Rupert |
| 2010 NY Slip Op 01556 [70 AD3d 1264] |
| February 25, 2010 |
| Appellate Division, Third Department |
| In the Matter of Edward J. Card Sr., Respondent, v Kerry J. Rupert,Appellant. (And Another Related Proceeding.) |
—[*1] A.J. Bosman, Law Guardian, Rome.
Malone Jr., J. Appeal from an order of the Family Court of Madison County (Garramone,J.H.O.), entered February 6, 2009, which, among other things, granted petitioner's applications,in two proceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
In January 2008, respondent (hereinafter the mother) was awarded sole custody of theparties' child (born in 2002) and petitioner (hereinafter the father) was granted visitation and,among other things, the right to be consulted on "all major decisions regarding the child."Pursuant to that order, which was entered with the parties' consent, each was prohibited fromconsuming alcohol in the child's presence. Seven months later, the father commenced theseproceedings seeking sole custody of the child, alleging that the mother was consuming alcohol inthe child's presence and seeking to enforce the order, alleging that the mother had re-enrolled thechild in kindergarten without consulting him. After fact-finding and Lincoln hearings,Family Court awarded the parties joint legal custody with primary physical custody to the father.The mother appeals.
Although Family Court did not specifically articulate a finding that the father establishedthat a substantial change in circumstances occurred warranting a modification of the priorcustody order, the record here demonstrates that a sufficient change in circumstances [*2]occurred that warranted a best interests analysis (see Matter ofBedard v Baker, 40 AD3d 1164, 1165 [2007]). For example, the mother admitted that sheunilaterally decided to re-enroll the child in kindergarten at a different school (see Matter ofMartin v Martin, 45 AD3d 1244, 1246 [2007]), which was in contravention of the priorcustody order, and it was revealed that the child often spends several nights a week at ababysitter's house.
As for the child's best interests, Family Court was required to consider, among other things,the child's wishes, the quality of each party's home environment, and the relative fitness andability of each party to guide and provide for the child's overall development (see Matter ofRue v Carpenter, 69 AD3d 1238, 1239-1240 [2010]; Matter of Burola v Meek, 64AD3d 962, 965 [2009]). Here, the record establishes that, due to the mother's work schedule, thechild regularly spends several nights away from home, whereas he would be able to spend eachnight in his own bed if he lived with the father. There is also some evidence that the bruisingobserved on the child was not the result of the child's play activities, as the mother claimed, but,rather, was caused by the mother herself. Additionally, the mother admitted to consumingalcohol on at least one occasion since the entry of the prior order, despite her history of alcoholabuse and her prior involvement in an alcohol counseling program. However, there is noevidence to suggest that the father is an unsuitable custodian for the child. Upon our review ofthe record, including the information to be gleaned from the Lincoln hearing, it cannotbe said that Family Court's award of primary physical custody to the father lacks a sound andsubstantial basis (see Matter of LaFountain v Gabay, 69 AD3d 994, 995 [2010]).
As a final matter, it was clearly improper for Family Court to request that the Law Guardianprovide a recommendation and equally improper for the Law Guardian to comply with thatrequest (see e.g. Matter of Devin XX., 20 AD3d 639, 641 [2005]; Weiglhofer vWeiglhofer, 1 AD3d 786, 788 n [2003]). However, because the record amply supports thecourt's decision, such error is deemed harmless (see Matter of Treider v Lamora, 44AD3d 1241, 1243 [2007], lv denied 9 NY3d 817 [2007]; Matter of Rush v Rush,201 AD2d 836, 838 [1994]).
Mercure, J.P., Spain, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.