| Matter of Claflin v Giamporcaro |
| 2010 NY Slip Op 06017 [75 AD3d 778] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Donald H. Claflin, Appellant, v Elena C.Giamporcaro, Formerly Known as Elena C. Claflin, Respondent. (And Another RelatedProceeding.) |
—[*1] Tracy L. Pugliese, Clinton, for respondent. Justin R. Murphy, Oneida, attorney for the child.
McCarthy, J. Appeal from an order of the Family Court of Madison County (McDermott, J.),entered December 9, 2008, which granted respondent's application, in two proceedings pursuantto Family Ct Act article 6, to modify a prior order of custody.
When petitioner (hereinafter the father) and respondent (hereinafter the mother) obtained adivorce in 2005, the judgment incorporated a stipulation that they share joint custody of their son(born in 2004). The judgment included a schedule in which the parents had substantially equaltime with the child, but did not address schooling or state which parent had primary physicalcustody. When the child reached school age, the father filed a petition seeking an order ofprimary physical custody so the child could attend school in the district where the father resided.The mother filed a petition seeking sole custody. In December 2008, Family Court granted themother's petition. The father appeals.
Initially, this matter is not moot. In the order on appeal, Family Court specifically noted thatthe parties' schedules were likely to change within a short time and that either party could [*2]petition the court for a new visitation schedule. In March 2010, theparties consented to entry of an order setting forth a specific visitation schedule and nototherwise superceding any prior orders. The stipulation noted that the father did not waive hisright to continue the present appeal. Considering the reservations in the December 2008 orderand the provision in the March 2010 stipulation that the new order would only supercede priororders with respect to visitation, the appeal from the December 2008 order is not moot (see Matter of Fuller v Barreto, 72AD3d 1293, 1294 [2010]; Matterof Siler v Wright, 64 AD3d 926, 927-928 [2009]; Matter of Deuel v Dalton, 33 AD3d 1158, 1159 [2006]).
On the merits, Family Court properly awarded sole custody to the mother. The testimonydescribed a lack of communication between the parties. When the father became upset over abounced child support check, he refused to speak to the mother for approximately one year.During doctor visits when both parties were present, the father ignored the mother when shespoke to him about the child. Notes sent in the child's bag between the mother and the paternalgrandmother constituted the majority of communication regarding the child. This inability of theparties to discuss or reach agreement on major issues affected the child; each parent enrolled thechild in a different school and at one point the father refused to consent to a medical procedurerecommended by the child's doctor. This inability to communicate or effectively coparent, alongwith the child reaching school age and the divorce judgment not addressing the child's schooling,constituted a change in circumstances requiring a modification of the prior order (see Matterof Troy SS. v Judy UU., 69 AD3d 1128, 1130 [2010], lv dismissed 14 NY3d 912[2010]; Matter of Williams vWilliams, 66 AD3d 1149, 1150-1151 [2009]).
With the parties unable to cooperate, joint custody was inappropriate and sole custodybecame necessary (see Matter of Williams v Williams, 66 AD3d at 1150-1151). FamilyCourt's findings and credibility determinations are entitled to deference and will be disturbedonly if they lack a sound and substantial basis in the record (see id.). Here, the courtfound that the mother generally tried to facilitate communication with the father and keep himabreast of developments regarding the child, but the father prevented communication by refusingto provide contact information or to reply to the mother when she attempted to engage indiscussions. He never supplied the mother with his work or school hours or cell phone number,even after the mother had difficulty reaching him when the child experienced a medicalemergency. Although both parties unilaterally enrolled the child in a prekindergarten program intheir school of choice, the mother explained her attempts to discuss the issue and reach anagreement with the father, whereas he acted despite knowing that no agreement had beenreached. Testimony established that the mother attended more doctor visits concerning the child,offered to show the father and his family how to care for the child's needs after surgery, andresponded to their questions regarding his care. Despite both parents providing a lovingenvironment for the child, the court reasonably concluded that the mother was more likely tofoster a relationship between the child and the other parent and attempt to provide the father withinformation regarding the child. Accordingly, the court properly determined that awarding solecustody to the mother was in the child's best interests (see Matter of Anson v Anson, 20 AD3d 603, 604 [2005], lvdenied 5 NY3d 711 [2005]).
Cardona, P.J., Rose, Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.