| Matter of Scott QQ. v Stephanie RR. |
| 2010 NY Slip Op 06025 [75 AD3d 798] |
| July 8, 2010 |
| Appellate Division, Third Department |
| In the Matter of Scott QQ., Respondent, v Stephanie RR.,Appellant. |
—[*1] Monique B. McBride, Selkirk, for respondent. Robert J. White, Cornwallville, attorney for the child.
Egan Jr., J. Appeal from an order of the Family Court of Greene County (Czajka, J.), enteredJanuary 7, 2009, which granted petitioner's application, in a proceeding pursuant to Family CtAct article 6, to modify a prior order of custody.
The parties are the unmarried parents of a son, born in 2002. Pursuant to an order of FamilyCourt (Pulver, Jr., J.), entered in April 2005, the parties shared joint legal custody of the child,with respondent (hereinafter the mother) having sole residential custody and petitioner(hereinafter the father) having visitation rights. In June 2007, the father filed a petition seekingtemporary custody of the child based on allegations that the child had witnessed the mother'sboyfriend physically abuse the mother. The same day, after taking testimony from the father andspeaking with the child in the courtroom, Family Court issued a bench decision granting thefather temporary emergency custody. The next day, the mother filed a petition to modify thatdecision and, shortly thereafter, the father filed an amended petition. After three days of hearingsheld in August, September and October 2007, the father rested. The mother immediately movedto dismiss the father's amended petition. Family Court reserved decision on the motion and thematter was adjourned for assignment of the next hearing date. In December 2007, before FamilyCourt had rendered any decision on the mother's motion, the mother retained new counsel withwhom Family Court had a preexisting ethical conflict. The court recused itself and the case was[*2]reassigned to a new judge.
In January 2008, the mother renewed her motion to dismiss the father's amended petition,this time by written motion. The parties stipulated that, with respect to a decision on this motiononly, Family Court (Czajka, J.) could rely on the transcript of the hearing before the previousjudge. In September 2008, Family Court dismissed certain of the allegations set forth in theamended petition, but denied the mother's motion to dismiss the amended petition as to fourspecific allegations: (1) the mother had neglected the child's dental hygiene, (2) the mother hadacted violently in the child's presence, (3) the mother had permitted her boyfriend to act violentlyin the child's presence, and (4) the mother had permitted the child to be in the presence of herboyfriend in violation of the court's previous order. Family Court then directed that a trial denovo be conducted with respect to the surviving allegations, which was held in November 2008.At that trial, the father, the mother, and the mother's teenage daughter from another relationshiptestified; the next day, a Lincoln hearing was conducted. In January 2009, Family Courtissued a written decision granting the father's amended petition, finding that there had been asufficient change in circumstances by reason of the repeated instances of domestic violenceinflicted on the mother by her boyfriend, and awarded legal and residential custody to the fatherwith visitation rights to the mother. The mother now appeals and we reverse.
"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" (Matter of Rue vCarpenter, 69 AD3d 1238, 1239 [2010] [internal quotation marks and citation omitted];see Matter of Bronson v Bronson,63 AD3d 1205, 1206 [2009]). Upon a demonstration of such a change in circumstances, thecourt must then undertake a best interests analysis (see Matter of Smith v White, 53 AD3d 814, 815 [2008]; Matter of Chase v Benjamin, 44 AD3d1130, 1131 [2007]; Matter ofKerwin v Kerwin, 39 AD3d 950, 951 [2007]).
We find that Family Court's decision finding a change in circumstances lacks a sound andsubstantial basis in the record (seeMatter of Hurlburt v Behr, 70 AD3d 1266, 1268 [2010]). The evidence presented at thede novo trial is insufficient to establish that the mother was the victim of repeated domesticviolence at the hands of her boyfriend or that the child witnessed it. While the motheracknowledged that the boyfriend did strike her on one occasion in April 2007 outside of thepresence of the child and conceded that he had a drinking problem, she took appropriate actionby terminating the relationship and changing the locks. Family Court could not rely on thestatements made by the child at the Lincoln hearing since they were not corroborated(see Family Ct Act § 1046 [a] [vi]; Matter of Benjamin v Benjamin, 48 AD3d 912, 914 [2008]).Likewise, the father's testimony as to what the child told him was not sufficiently corroborated(see Family Ct Act § 1046 [a] [vi]; Matter of Cobane v Cobane, 57 AD3d 1320, 1321 [2008], lvdenied 12 NY3d 706 [2009]). Accordingly, the father failed to establish a change incircumstances requiring a modification of the prior custody order to ensure the best interests ofthe child and, therefore, the father's amended petition should be dismissed. Because the fatherfailed to establish this threshold change in circumstances, we need not undertake a best interestsanalysis (see Chase v Benjamin, 44 AD3d at 1132).
The mother's argument that Family Court erred in failing to grant her motion to dismiss,made at the close of petitioner's case, is rendered academic in light of this determination.
Cardona, P.J., Mercure, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law, without costs, and petition dismissed.