| Matter of Fitzpatrick v Fitzpatrick |
| 2010 NY Slip Op 07443 [77 AD3d 1108] |
| October 21, 2010 |
| Appellate Division, Third Department |
| In the Matter of Michael Fitzpatrick, Appellant, v CindyFitzpatrick, Respondent. (And Another Related Proceeding.) |
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Cardona, P.J. Appeals (1) from an order of the Family Court of Washington County(Pritzker, J.), entered September 9, 2009, which, among other things, partially granted petitioner'sapplication, in a proceeding pursuant to Family Ct Act article 6, to modify a prior visitationorder, and (2) from an order of said court, entered September 4, 2009, which dismissedpetitioner's application, in a proceeding pursuant to Family Ct Act article 6, to hold respondent inviolation of a prior order.
Pursuant to a March 2008 Family Court order entered upon stipulation, petitioner (hereinafterthe father) and respondent (hereinafter the mother) share joint legal and physical custody of theirtwo sons, Cody (born 1996) and Colton (born 1998). In 2009, the parties each petitioned tomodify custody, however, the mother's petition was ultimately withdrawn. In addition, the fatherfiled a petition alleging that the mother violated a separate Family Court order requiring her todelete both children's accounts from the MySpace social networking site. Following afact-finding hearing, the court determined that there was no significant change in [*2]circumstances and declined to modify the custodyarrangement.[FN1]By separate order, the court dismissed the violation petition. The father appeals from both orders.
Turning first to the father's contention that Family Court erred in denying his request to alterthe custody arrangement, we note that "[m]odification of an established custody arrangementrequires 'a showing of sufficient change in circumstances reflecting a real need for change inorder to insure the continued best interest of the child' " (Matter of Rue v Carpenter, 69 AD3d 1238, 1239 [2010], quotingMatter of Martin v Martin, 61 AD3d1297, 1298 [2009]; see Matter ofEck v Eck, 57 AD3d 1243, 1244 [2008]). Under the 2008 order, the parties' custodyschedule results in the children spending weekends with the mother and most school nights withthe father. The parties share custody equally during school vacations and holidays. The fathercontends that the children's poor academic performance, as well as their misbehavior at schooland at home, establish a change in circumstances warranting modification of that arrangement toallow him custody during the full school week and on one weekend each month.
Upon reviewing this record, which includes, among other things, the parties' testimony,transcripts of the Lincoln hearings, and the psychological report evaluating the custodyarrangement, we find "a sound and substantial basis" (Matter of Eck v Eck, 57 AD3d at1245; see Matter of Bronson vBronson, 63 AD3d 1205, 1206 [2009]) for Family Court's conclusion that the children'sacademic and behavioral problems are caused not by the existing custody arrangement, but ratherby the long-standing animosity between the parties.[FN2]The father has not shown that a change in custody would alleviate that situation or otherwiseenhance the children's welfare (see Matter of Bronson v Bronson, 63 AD3d at 1206).Indeed, under the existing arrangement, the father presently has custody of the children on themajority of school nights, and he submitted no proof that the mother's influence has adverselyaffected their schoolwork or caused their problems with classmates.
With respect to the violation petition, Family Court credited the mother's testimony that shedeleted the children's MySpace accounts as quickly as possible given the technical problems sheencountered, and that she allowed Cody access to her personal account strictly for the limitedpurpose of chatting with his friends and only after the attorney for the children advised her thatdoing so would not violate the court's order. Given the court's opportunity to observe the mother'stestimony, we defer to its assessment of her credibility (see Matter of Shelby B., 55 AD3d 986, 988 [2008]; Matter of Blaize F., 48 AD3d1007, 1009 [2008]). Accepting that credibility determination, we find that the father did notmeet his burden of demonstrating by "clear and convincing evidence" that the mother willfullyviolated the court's order (Matter of Blaize F., 48 AD3d at 1008; see Matter of ShelbyB., 55 AD3d at 987).
To the extent that the father argues that the mother violated a different order of the court byallowing her boyfriend to drive with the children in the car, we note that this conduct was not[*3]a subject of the violation petition and, in any event, the courtexpressly noted that it would consider the matter relative to the request for modification.
Peters, Rose, Malone Jr. and Stein, JJ., concur. Ordered that the orders are affirmed, withoutcosts.
Footnote 1: Family Court did modify theprior custody order by adding certain conditions that are not challenged by either party.
Footnote 2: Family Court addressed itsconcerns in that regard by ordering the parties, among other things, to attend parenting classesand enroll the children in mental health counseling.