| Matter of Belinda YY. v Lee ZZ. |
| 2010 NY Slip Op 04670 [74 AD3d 1394] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Belinda YY., Appellant, v Lee ZZ., Respondent.(Proceeding No. 1.) In the Matter of Belinda YY., Appellant, v Lee ZZ., Respondent.(Proceeding No. 2.) |
—[*1] J. Mark McQuerrey, Hoosick Falls, attorney for the child.
McCarthy, J. Appeals (1) from an order of the Family Court of Cortland County (Campbell,J.), entered January 30, 2009, which dismissed petitioner's application, in proceeding No. 2pursuant to Family Ct Act article 8, for an order of protection, and (2) from an order of saidcourt, entered February 25, 2009, which dismissed petitioner's application, in proceeding No. 1pursuant to Family Ct Act article 6, for custody of the parties' child.
The parties are the divorced parents of two children, only one of whom is still a minor (bornin 1992). The family has an extensive history in Family Court, including numerous [*2]proceedings under Family Ct Act articles 6, 7, 8 and 10. Petitionercommenced a proceeding pursuant to Family Ct Act article 6 seeking sole custody of the minorchild and termination of respondent's visitation rights. Petitioner also commenced a familyoffense proceeding pursuant to Family Ct Act article 8 seeking an order of protection on behalfof herself and the child against respondent. Following a hearing, Family Court dismissed thefamily offense petition and awarded sole custody to respondent with visitation to petitioner.Petitioner appeals from both orders.
Family Court properly dismissed the family offense petition. Petitioner testified that she andthe child were scared of respondent, but this fear appeared based on rumors or events that sheadmitted were not recent. Most of her testimony was inadmissible hearsay, which cannot be usedto establish a family offense (see Family Ct Act § 834). The court foundpetitioner's credibility questionable and the child's testimony did not support the petition.Accordingly, the court properly determined that petitioner did not establish a family offense by"a fair preponderance of the evidence" (Family Ct Act § 832; see Matter of Yishak v Ashera, 68AD3d 1282, 1284 [2009]).
Family Court did not err in awarding custody to respondent. The prior custody orderpursuant to Family Ct Act article 6 was entered in 2003, but the parties and even the court wereconfused as to the actual controlling order because custody had been subsequently awardedeither permanently or temporarily in proceedings pursuant to Family Ct Act articles 7 or 10.Either because of or despite the orders, the child had lived with each of the parties at differenttimes. The record contains proof of several changes in circumstances since the 2003 order suchthat a change in custody would be warranted, including the numerous Family Court proceedings,petitioner's arrest and pending criminal charges, the child's arrest and pending criminal chargesand recent child protective reports substantiated against both parties. A substantial change incircumstances having been established, the evidence supports the court's determination that achange in custody was necessary to ensure the child's best interests (see Matter of Gorham v Gorham, 56AD3d 985, 986 [2008]).
Testimony showed that petitioner could not control the child, she and her paramour useddrugs in the residence and smoked marihuana with the child, and she was facing charges ofendangering the welfare of a child and forcible touching. While respondent had been evictedfrom his residence, he was never homeless and found a new residence soon thereafter, he and hiswife both have jobs and he does not use drugs. Although respondent did not immediately enrollthe child in school, respondent was working with the school district and a caseworker toestablish an appropriate educational plan and mental health counseling for the child. FamilyCourt found petitioner less than credible because, in addition to witnessing her demeanor duringthe hearing, the court verified that some of her testimony was not accurate (see Matter ofYishak v Ashera, 68 AD3d at 1283). The child testified that he wanted to live withrespondent, had moved in with respondent during the pendency of these proceedings and felt lessstress in that household. While the child's wishes are not determinative, a child's age andreasoning may render those wishes more probative and entitle them to greater consideration (see Matter of Gutiy v Gutiy, 40 AD3d1155, 1156 [2007]; Matter of Carnese v Wiegert, 273 AD2d 554, 557 [2000]).Noting that the child was 16 years old and rationally explained the reasons for his choice ofcustodial arrangements, the court did not err in relying on those wishes to reach itsdetermination. Overall, the record contains a sound and substantial basis to support the court'sdetermination that respondent should be awarded sole custody (see Matter of Gutiy vGutiy, 40 AD3d at 1156).[*3]
Peters, J.P., Rose, Stein and Garry, JJ., concur. Orderedthat the orders are affirmed, without costs.