| Matter of Meier v Meier |
| 2010 NY Slip Op 09034 [79 AD3d 1295] |
| December 9, 2010 |
| Appellate Division, Third Department |
| In the Matter of Nancy Key Meier, Appellant, v Karl V. Meier,Respondent. |
—[*1] Cliff Gordon, Monticello, for respondent. Jehed Diamond, Delhi, attorney for the children.
Lahtinen, J. Appeal from an order of the Family Court of Delaware County (Becker, J.), enteredApril 29, 2009, which dismissed petitioner's application, in a proceeding pursuant to Family Ct Actarticle 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) divorced in 1999 and, in2002, the mother was awarded legal and physical custody of their two daughters (born in 1993 and1995). In 2005, legal and physical custody was transferred to the father after the mother relocated toMontana with the children without court approval or the father's permission (Matter of Meier v Key-Meier, 36 AD3d1001, 1003-1004 [2007]). The mother eventually returned to New York and remained involvedin her daughters' lives. In 2008, she commenced this proceeding seeking custody based upon thechildren's ages (then 15 and 13 years old) and their wish to live with her. Following a hearing and an incamera interview of both children, Family Court dismissed the petition. The mother appeals.
" 'An existing custody arrangement may be modified upon a showing that there has been asubsequent change of circumstances and modification is required to ensure the best interests of thechildren' " (Matter of Valenti v Valenti,57 AD3d 1131, 1132-1133 [2008], lv denied 12 NY3d 703 [2009], quoting Matter of Laware v Baldwin, 42 AD3d696, 696 [2007]; see Matter of [*2]Rue v Carpenter, 69 AD3d 1238, 1239 [2010]; Matter of Martin v Martin, 61 AD3d1297, 1298 [2009]). A sufficient change of circumstances is set forth in this case by thecombination of the mother returning to New York to live near the children, her acquiring a stable job,and the teenaged children's expressed wish to live with their mother (see Matter of Burch v Willard, 57 AD3d1272, 1273 [2008]).
The analysis thus turns to the children's best interests. A nonexhaustive list of some of the relevantfactors include "the quality of the respective home environments, the child[ren]'s wishes, the length oftime the present custody arrangement has been in place and each parent's past performance, relativecompetence and capacity to provide for and direct the child[ren]'s development" (Matter of De Hamel v Porto, 22 AD3d893, 894 [2005]; see Matter of Valenti v Valenti, 57 AD3d at 1133). "Family Court'sfindings and credibility determinations are entitled to deference and will be disturbed only if they lack asound and substantial basis in the record" (Matter of Claflin v Giamporcaro, 75 AD3d 778, 780 [2010], lvdenied 15 NY3d 710 [2010]; seeMatter of Arieda v Arieda-Walek, 74 AD3d 1432, 1434 [2010]).
Both individuals are loving parents and each brings different strengths and weaknesses to thechildren's lives. Family Court, however, was particularly concerned about the mother's willingness tocontinue to mislead the father and undermine his authority. For example, despite the fact that the fatherhad legal and physical custody, the mother assisted one child in making an important medical decisionwithout consulting or notifying the father, she permitted the older child to visit a boyfriend even thoughshe knew the father had grounded the child from such a visit, and she purchased both children cellphones without input from the father. The father had provided a stable home and the children weredoing well academically and socially. He regularly attended parent-teacher meetings at school whereasthe mother had never attended such a meeting. He required the children to adhere to household rules.When the mother was asked about discipline, she responded that the children were wonderful and didnot need discipline. While the teenaged children stated that they wanted to live with their mother andtheir wish is given considerable weight, it is not solely dispositive (see Matter of Cornell v Cornell, 8 AD3d 718, 719 [2004]). Relevant insuch regard is Family Court's finding that the mother often elevated the children's wants over theirneeds; too frequently acting as a pal rather than a parent. This is a difficult case in light of the age andstated preference of the children. Nevertheless, Family Court made key credibility determinations infavor of the father and there is a sound and substantial basis in the record supporting its determination.Accordingly, we affirm.
Peters, J.P., Spain, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.