| Matter of Arieda v Arieda-Walek |
| 2010 NY Slip Op 04683 [74 AD3d 1432] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of David P. Arieda, Respondent, v Deborah A.Arieda-Walek, Appellant. (And Two Other Related Proceedings.) |
—[*1] Law Offices of Martin & Martin, Glens Falls (Michael S. Martin of counsel), for respondent. Elizabeth A. Donahue, Glens Falls, attorney for the children.
Cardona, P.J. Appeal from an order of the Family Court of Washington County (Pritzker, J.),entered July 14, 2009, which, among other things, granted petitioner's application, in threeproceedings 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 oftwo sons (born in 1997 and 2001). In 2002, the parties divorced in Wisconsin and, pursuant totheir settlement agreement, shared joint legal custody, with the mother having primary physicalcustody of the children. Eventually, both parties moved to New York and, in April 2007, FamilyCourt entered an order, on stipulation, pursuant to which joint legal custody was continued and,among other things, physical custody would be shared on an alternating weekly basis.
After various disputes between the parties, in November 2008, the father commenced one ofthe subject proceedings herein seeking to modify the 2007 order so that he would be grantedphysical custody of the children, with reasonable visitation to the mother. In the petition, thefather alleged that the mother violated Family Court's directives by, for example, failing to [*2]facilitate his telephone contact with the children and participate infamily counseling. The father also contended that the mother created an unstable environmentfor the children as a result of her ongoing altercations with neighbors, which involved numerousunfounded complaints by her to the police. Along with the modification petition, the father filedtwo additional petitions alleging violations of court orders. Following fact-finding andLincoln hearings, Family Court found, among other things, that the standards formodification of the prior custody order had been met and the best interests of the childrenwarranted granting the father's petition. The court continued joint legal custody of the childrenbut awarded primary physical custody to the father, prompting this appeal.
"Modification of an established custody arrangement requires a showing of sufficient changein circumstances reflecting a real need for change in order to insure the continued best interest ofthe child[ren]" (Matter of Rue vCarpenter, 69 AD3d 1238, 1239 [2010] [internal quotation marks and citation omitted];see Matter of Terry I. v Barbara H.,69 AD3d 1146, 1147 [2010]). Here, the record supports Family Court's finding that such achange in circumstances occurred. The mother testified to her noncompliance with certainprovisions of the prior order, including the directive to facilitate the children's telephone contactwith their father. Although she attempted to present extenuating circumstances or attribute herlack of compliance to misunderstandings, the court did not find her explanations to be consistentor completely credible. The court also found significance in the extensive evidencedemonstrating what was described as "paranoid" behaviors in response to the turbulent disputeswith her neighbors.[FN*]
Having determined that a sufficient "change [in] circumstances had occurred which impactedupon the child[ren]'s best interests" (Matter of Zwack v Kosier, 61 AD3d 1020, 1021 [2009], lvdenied 13 NY3d 702 [2009]; seeMatter of Kowatch v Johnson, 68 AD3d 1493, 1494 [2009], lv denied 14 NY3d704 [2010]), Family Court was then required to conduct a best interest analysis in the context ofa number of relevant factors, including "the relative fitness, stability, past performance, andhome environment of the parents, as well as their ability to guide and nurture the children andfoster a relationship with the other parent" (Matter of Cukerstein v Wright, 68 AD3d 1367, 1368 [2009]).Applying the factors herein, Family Court focused on the mother's demonstrated difficulties incomplying with court directives and fostering the children's relationship with their father. Inaddition, it is apparent that the mother's ongoing disputes with her neighbors and resultingconcern over the children being raised in an unstable environment (see Matter of Richardson v Alling, 69AD3d 1062, 1064 [2010]) clearly weighed in the court'sdetermination—considerations which were echoed to a certain extent in the forensic reportfrom the psychologist who evaluated the family. Under these circumstances and accordingdeference to the court's fact-finding and credibility determinations, we conclude that the ordertransferring physical custody to the father is supported by a sound and substantial basis in thisrecord (see id. at 1064; Matterof Solomon v Long, 68 AD3d 1467, 1469 [2009]).
Finally, the mother contends that she received ineffective assistance of counsel. Notably, inevaluating such a claim, this Court considers the totality of the circumstances and determineswhether the litigant has "demonstrate[d] that [he or] she was deprived of meaningfulrepresentation as a result of [the] lawyer's deficiencies" (Matter of Hurlburt v Behr, 70AD3d [*3]1266, 1267 [2010]; see Matter of Gerald BB., 51 AD3d 1081, 1083 [2008], lvdenied 11 NY3d 703 [2008]). Here, the record reveals that counsel assisted the mother inexplaining her behavior, which appears to be an appropriate strategy considering that herdisputes with neighbors were well-documented. Moreover, counsel cross-examined some of thewitnesses and made appropriate objections, several of which were sustained. Significantly,Family Court's decision appears to accurately detail the mother's position on the issues. Thus,while counsel's representation was not flawless, under the circumstances herein, we find that themother, nevertheless, received meaningful representation.
Spain, Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: Contrary to the mother'sargument, Family Court did not "render a mental health diagnosis." Instead, the court evaluatedher behavior as it was relevant to the custody analysis.