| Matter of Bush v Bush |
| 2010 NY Slip Op 04691 [74 AD3d 1448] |
| June 3, 2010 |
| Appellate Division, Third Department |
| In the Matter of Robert A. Bush Jr., Appellant, v Melissa Bush,Respondent. |
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Egan Jr., J. Appeal from an order of the Family Court of Delaware County (Becker, J.),entered May 28, 2009, which, among other things, dismissed petitioner's application, in aproceeding pursuant to Family Ct Act article 6, for custody of the parties' children.
The parties are the separated parents of two children, born in 2000 and 2002. In 2005, withthe consent of petitioner (hereinafter the father), respondent (hereinafter the mother) moved fromTown of Walton, Delaware County to Florida. Before she moved, a custody and visitation orderwas entered, whereby the parties stipulated that, among other things, the mother would have solecustody of the children with the father having certain visitation rights. In 2007, after the motherand the children moved back to New York, the parties followed a modified, mutually agreedvisitation schedule. In January 2009, the mother advised the father that she intended to join themilitary reserves and would be required to attend boot camp training. The father thencommenced this proceeding contending that he should be awarded sole custody of the childrenbased, among other things, on the mother's potential absence from the home due to militaryservice.
Following a fact-finding hearing, Family Court found that, while the mother's relocationback to New York constituted a change in circumstances, sole custody should remain with the[*2]mother. The court crafted a visitation schedule similar to theschedule set forth in the prior order and also granted the father temporary custody during themother's expected boot camp commitment—from July 2009 through December 2009. Thefather now appeals and we affirm.
Initially, in addressing the father's contention that Family Court was biased in favor of themother, who appeared pro se, "[c]ourts are obligated to 'keep the respective parties focused upona succinct presentation of evidence relevant to the issues to be decided [and to] . . .insure an orderly and expeditious trial' " (London v London, 21 AD3d 602, 602 [2005], quoting Douglasv Douglas, 281 AD2d 709, 710-711 [2001]). "Observation of this precept does notdemonstrate bias or hostility unless it is clear that due process rights to a fair trial have beenimpaired" (London v London, 21 AD3d at 602-603 [citations omitted]). Based on ourreview of the record, which reflects Family Court's attempt to streamline the presentation ofevidence in accordance with proper court procedures and the rules of evidence, we do not findthat the father's due process rights were violated based on a claimed bias in favor of the mother.
In turning to the merits of the appeal, "[w]here modification of an existing custody order issought, a petitioner must establish a sufficient change in circumstances since entry of the priororder to warrant modification thereof in the child's best interest" (Matter of Davis v Palacio, 61 AD3d1280, 1281 [2009] [internal quotation marks and citation omitted]). As there is no challengeto Family Court's finding of a change in circumstances, we need only address whether it was inthe children's best interests to keep custody with the mother (see Matter of Dickerson v Robenstein, 68 AD3d 1179, 1180[2009]). In making this determination, the factors to be considered include "maintaining stabilityin the children's lives, the quality of the respective home environments, the length of time thepresent custody arrangement has been in place and each parent's past performance, relativefitness and ability to provide for and guide the children's intellectual and emotionaldevelopment" (Matter of Siler vWright, 64 AD3d 926, 928 [2009]; see Matter of Dickerson v Robenstein, 68AD3d at 1180).
According deference to Family Court's ability to evaluate the testimony and assess thecredibility of witnesses (see Matter of Siler v Wright, 64 AD3d at 928), we find a soundand substantial basis for its determination (see id.; Matter of Grant v Grant, 47 AD3d 1027, 1029 [2008]; Matter of Gravelding v Loper, 42AD3d 740, 742 [2007]). The children have resided with the mother since the parties'separation. Since the mother's relocation to New York, the parties have maintained a mutuallyagreeable visitation schedule. The father testified that he applied for a modification of thecustody order based on the mother's stated intention to join the military, the children's tardinessto school and concerns over the children's dental care. Initially, Family Court appropriately dealtwith the mother's intention of joining the military reserves by awarding the father temporarycustody of the children during the time that the mother was expected to be away at bootcamp.[FN*]With respect to the children's absences from and tardiness to school, the record reflects that themother has taken steps to address the problem and the children are performing well in school.Furthermore, contrary to the father's allegations, there is no evidence that the mother's workschedule or financial difficulties has placed the children in jeopardy. Likewise, there is also noevidence that the mother has failed to obtain appropriate dental care and [*3]educational services for the children. We are unpersuaded that thefather's remaining contentions require reversal of Family Court's determination.
Cardona, P.J., Spain, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: Aside from the initial boot campfrom July to December 2009, the mother expected that her military obligation in the reserveswould consist of one weekend per month and two weeks per year.