| Matter of Pappas v Kells |
| 2010 NY Slip Op 07766 [77 AD3d 952] |
| October 26, 2010 |
| Appellate Division, Second Department |
| In the Matter of Elizabeth Pappas, Respondent, v PatriciaKells, Appellant. |
—[*1] Susan D. Stuart, Hauppauge, N.Y. (Curtis R. Exum of counsel), for respondent. Diane B. Groom, Central Islip, N.Y., attorney for the children.
In a child custody proceeding pursuant to article 6 of the Family Court Act, Patricia Kellsappeals, as limited by her brief, from so much of an order of the Family Court, Suffolk County(Lechtrecker, Ct. Atty. Ref.), dated November 17, 2009, as, after a hearing, in effect, granted thepetition to modify a prior order of the same court dated October 2, 2008, so as to award sole legaland residential custody of the subject children to the petitioner.
Ordered that the order is affirmed insofar as appealed from, with costs.
The parents, the petitioner, Elizabeth Pappas, and the appellant, Patricia Kells, enjoyed jointcustody of their two children pursuant to an order entered on the parties' consent on October 2,2008. Pappas commenced this proceeding seeking sole legal and residential custody of thechildren, with visitation to Kells. In the order appealed from, the Family Court, in effect, grantedthe petition. Kells appeals, and we affirm insofar as appealed from.
Contrary to Kells's contention, the Family Court was not required to hold a separateevidentiary hearing on the issue of whether there had been a sufficient change of circumstancessince the entry of the joint custody order before it proceeded to a best interests hearing (cf.Friederwitzer v Friederwitzer, 55 NY2d 89, 93-94 [1982]; Stysis v Stysis, 70 AD3d 672[2010]; Salick v Salick, 66 AD3d757 [2009]; Matter of Lopez vInfante, 55 AD3d 837, 838 [2008]). Although courts require some evidentiary showingwarranting a modification in the best interests of the children (see Teuschler v Teuschler,242 AD2d 289, 290 [1997]; Matter of Miller v Lee, 225 AD2d 778, 779 [1996]), theFamily Court providently exercised its discretion in finding that Pappas had shown that thediscord between the parties had escalated to a point where they could no longer cooperate onmatters concerning the children and, therefore, joint custody was no longer feasible (see Blissv Ach, 56 NY2d 995, 998 [1982]; Braiman v Braiman, 44 NY2d 584, 587 [1978]; Matter of Lovitch v Lovitch, 64 AD3d710, 712 [2009]; Matter of Francisv Cox, 57 AD3d 776, 777 [2008]).
In any custody dispute, the standard ultimately to be applied remains the best interests of thechildren when all of the applicable factors are considered (see Eschbach v Eschbach, 56NY2d 167, [*2]171 [1982]; Friederwitzer v Friederwitzer,55 NY2d at 95). Contrary to Kells's contention, the Family Court considered all relevant factorsand providently determined that, although both parents are fit to raise the children, the welfare ofthe children would best be served by placing primary custody with Pappas. Significantly, theFamily Court determined that Pappas demonstrated an ability and willingness to assuremeaningful contact between the children and Kells, and to foster a healthier relationship betweenthe children and Kells than Kells would have fostered between the children and Pappas (seeBliss v Ach, 56 NY2d at 998; Matter of Tori v Tori, 67 AD3d 1021 [2009]; Matter of Lovitchv Lovitch, 64 AD3d at 712; Falabella v Murray, 265 AD2d 450 [1999]). By contrast,Kells's interference with the children's relationship with Pappas was inconsistent with their bestinterests (see Matter of Lichtenfeld vLichtenfeld, 41 AD3d 849, 850 [2007]; Barbato v Barbato, 264 AD2d 792[1999]; Young v Young, 212 AD2d 114, 122 [1995]).
Kells's contention that the Family Court erred in denying her request for forensic evaluationsis not properly before us, as it is based on matter dehors the record (see Matter of Ruvolo v Herrera, 62AD3d 1012 [2009]; Matter ofMaurer v Maurer, 57 AD3d 548 [2008]; Matter of Simmons v Simmons, 48 AD3d 691, 693 [2008]).Further, the Family Court was not required to sua sponte order the evaluations, as there is nodiscernable legitimate purpose for court-ordered forensic evaluations in this case (seeFamily Ct Act § 251; Kaplansky v Kaplansky, 212 AD2d 667, 668 [1995]), and theFamily Court possessed sufficient information to render an informed decision regarding custodyconsistent with the subject children's best interests (see Matter of Rhodie v Nathan, 67 AD3d 687 [2009]; Matter of Johnson v Williams, 59AD3d 445 [2009]; Matter ofMcCullough v Brown, 21 AD3d 1349 [2005]).
Kells's remaining contentions are without merit. Rivera, J.P., Angiolillo, Chambers andAustin, JJ., concur.