| Matter of Paul T. v Ann-Marie T. |
| 2010 NY Slip Op 06022 [75 AD3d 788] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Paul T., Respondent, v Ann-Marie T., Appellant.(And Two Other Related Proceedings.) |
—[*1] Karin H. Marris, Syracuse, attorney for the child. Kelly M. Corbett, Fayetteville, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Madison County (McDermott, J.),entered August 31, 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 divorcedparents of a daughter (born in 1992) and a son (born in 1998). In a consent order entered in 2002,the parties were awarded joint legal custody of the children, with physical custody to the motherand visitation to the father. In 2009, the father filed three petitions, one seeking modification ofthe prior custody order, requesting primary custody of the son, another seeking enforcement ofthe visitation order and the third alleging that the mother had disobeyed a court order prohibitingthe parties from removing either child from the state without each other's permission.[FN*]After holding hearings, including a Lincoln hearing, Family Court dismissed the [*2]petition concerning the violation of the prior order, but found thatthe mother had interfered with the father's visitation with the son and, finding that it was in theson's best interest, awarded sole legal custody of the son to the father, with visitation to themother. The mother appeals.
We affirm. Initially, in that there is no dispute that the hostility between the parties precludesthe continuation of joint custody, we review whether Family Court's award of sole custody to thefather was in the son's best interest (seegenerally Matter of Hildenbrand v Hildenbrand, 37 AD3d 981, 981 [2007]). Apetitioner seeking a modification of an existing custody order must demonstrate a "showing ofsufficient change in circumstances reflecting a real need for change in order to insure thecontinued best interest of the child" (Matter of Van Hoesen v Van Hoesen, 186 AD2d903, 903 [1992]; accord Matter ofPassero v Giordano, 53 AD3d 802, 803 [2008]). In making such determinations, FamilyCourt is accorded due deference in its credibility determinations and factual findings, and wewill not disturb them unless they lack a sound and substantial basis in the record (see Matterof Troy SS. v Judy UU., 69 AD3d 1128, 1131 [2010], lv dismissed and denied 14NY3d 912 [2010]; Matter of Richardsonv Alling, 69 AD3d 1062, 1064 [2010]).
Here, Family Court found that the son had missed an excessive amount of school and thatthe explanations of the mother for the absences were not credible. Additionally, the mothertestified that she stopped monitoring the son's agenda notebook from school, which contained hisassignments and correspondence from his teachers, explaining that the son told her it no longerneeded to be signed. Further, the mother admitted that, based upon a finding that the mother hadfailed to respond to phone calls and e-mails from school officials concerning the absences, theMadison County Department of Social Services informed her that it had filed a petition againsther concerning the educational neglect of the son. Inasmuch as school records reflect that the sonmissed an excessive amount of school time and the mother failed to respond to the concerns ofschool officials to the point where the Department of Social Services became involved, we findthat there is a sound and substantial basis for Family Court's finding that there was a change incircumstances sufficient to proceed to a best interest analysis (see Matter of Terry I. v Barbara H., 69AD3d 1146, 1148 [2010]; Matter of Crocker v Crocker, 307 AD2d 402, 402-403[2003], lv denied 100 NY2d 515 [2003]).
"In evaluating the best interests of the child, a court must consider numerous factors,including the quality of each parent's home environments, their past performance and stability,and each parent's relative fitness and ability to provide for the child's intellectual and emotionaldevelopment" (Matter of Calandresa vCalandresa, 62 AD3d 1055, 1056 [2009] [citations omitted]; see Matter of Eck v Eck, 57 AD3d1243, 1244 [2008]). The record establishes that, while living with the mother, the daughteralso missed an excessive amount of school during the 2007-2008 school year, culminating in herhaving to repeat the tenth grade, and that she missed three months of classes during thefollowing academic year and ultimately left school. Based upon the son's similar attendancerecords and scholastic performance, we share Family Court's concern that the son is followingthe daughter's educational path. Further, in April 2009, the mother allowed the daughter to moveto California to live with her boyfriend, whom she had met on the Internet, and his family,without informing the father. There is also evidence in the record [*3]that the mother's family interfered with the son's relationship withhis assigned attorney, making sure that he never met with her without a family member present,despite his professed interest in speaking with his attorney alone. The mother also has failed tokeep the father apprised of special events in the son's life, including Boy Scout awards andceremonies. In contrast, the father has expressed his concern with the son's education and hasmet with his teachers and school officials. He has a stable home life, living with hisfiancÉe and her three daughters, ages 9, 14 and 16. While the father is not without his ownshortcomings and, as noted by Family Court, awarding custody to the father results in the sonbeing separated from his sibling and leaving his current school, friends and Boy Scout troop,according due deference to Family Court's credibility determinations and factual findings, weconclude that the award of sole custody to the father has a sound and substantial basis in therecord.
Finally, we reject the contention that Family Court abused its discretion by not appointing anattorney for the daughter at the hearing, as there is nothing in the record to indicate that such anappointment was necessary in resolving the issue of the son's custody (see Dana-Sitzer v Sitzer, 48 AD3d354 [2008]). Further, Family Court's decision to preclude testimony from the daughterconcerning the incident that formed the basis of the family offense petition against the father didnot prejudice the mother inasmuch as the mother had witnessed the incident and testifiedconcerning it in detail at the hearing.
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: The mother subsequently filed afamily offense petition against the father on behalf of the daughter. Family Court originallyscheduled a combined hearing on all four petitions, but severed the family offense petition fromthese proceedings after granting the motion of the daughter's attorney to remove herself fromrepresenting the daughter at the hearing.