| Matter of Starkey v Ferguson |
| 2011 NY Slip Op 00051 [80 AD3d 799] |
| January 6, 2011 |
| Appellate Division, Third Department |
| In the Matter of Ernest Starkey, Respondent, v Tracy Ferguson,Appellant. (And Three Other Related Proceedings.) |
—[*1] Steven H. Klein, Kingston, for respondent. Ivy M. Schildkraut, Monticello, attorney for the child.
Malone Jr., J. Appeal from an order of the Family Court of Ulster County (Feeney, J.H.O.),entered May 18, 2009, which, among other things, granted petitioner's application, in fourproceedings 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 parents of ason (born in 1993) and a daughter (born in 1999). At the time of their divorce in 2002, the partiesagreed that the father would have primary physical custody of the son and the mother would haveprimary physical custody of the daughter. However, in June 2006, the mother asked the father totake primary physical custody of the daughter. The mother left the daughter in the father's careuntil August 2007, at which point the mother abruptly reclaimed custody of her. As is relevanthere, the father then filed a petition seeking custody of the daughter.[FN*]Following a [*2]hearing, and a Lincoln hearing, FamilyCourt determined that the father demonstrated that a substantial change of circumstancesoccurred and that it was in the daughter's best interest to award the father primary physicalcustody, and a visitation schedule was established for the mother. The mother appeals.
The father was entitled to a modification of the existing custody order if he demonstrated a"sufficient change in circumstances reflecting a real need for change in order to insure thecontinued best interest of the child" (Matter of Rue v Carpenter, 69 AD3d 1238, 1239 [2010] [internalquotation marks and citation omitted]; accord Matter of Graves v Stockigt, 79 AD3d1170, 1171 [2010]). According deference to Family Court's assessment of the witnesses'credibility, we find that a substantial basis in the record exists for the court's determination that amodification of custody of the parties' daughter was warranted in this case (see Matter ofGraves v Stockigt, 79 AD3d at 1171). The record reflects that in 2006, the mother's livingarrangements became uncertain after she broke off one romantic relationship to begin another,and "effectively abdicated her role as the child's primary caregiver, at least temporarily," bysending the daughter to live with the father (Matter of Hetherton v Ogden, 79 AD3d1172, 1173 [2010]). At the time the petition was filed, the mother resided with her currentboyfriend and her daughter in a one-bedroom apartment, in which the daughter was sleeping on acouch. The boyfriend allegedly verbally abused the son and physically abused the mother in thechildren's presence on at least one occasion—which caused the frightened children to calltheir father in the middle of the night to get them. The instability of the mother's livingarrangements, the unsuitability of her current residence and the incident of domestic violencewitnessed by the children all provide ample support for the finding that a substantial change incircumstances had occurred (see Matter of Rue v Carpenter, 69 AD3d at 1239; Matter of Siler v Wright, 64 AD3d926, 928 [2009]; Matter of Valentiv Valenti, 57 AD3d 1131, 1133 [2008], lv denied 12 NY3d 703 [2009]).
Likewise, sufficient evidence in the record supports Family Court's determination that achange of custody to the father was in the daughter's best interests. Notably, the father maintainsa nurturing and stable home environment in which the daughter has her own bedroom, comparedto the mother, whose living arrangements have changed twice since the divorce and who wasmaintaining an inadequate residence. Although the mother acknowledged the need for her tosecure more appropriate housing, she offered no evidence of steps she had taken to actuallysecure a larger residence. The court also noted that, while in the father's care, the daughterperformed noticeably better in school and was absent less frequently than when she was with themother. Further, there is no evidence that the father attempted to discourage or interfere with themother's relationship with the daughter, yet there is convincing evidence that, on a number ofoccasions, the mother thwarted the father's attempts to have contact or visitation with thedaughter. There is also evidence in the record that the mother tends to place her own interestsabove those of her daughter, as indicated by the fact that she left the child with the father afterbecoming involved in a new romantic relationship and then visited her children only a few timesduring the ensuing year. When she reclaimed custody of the daughter, she did so abruptly,without notice to the father or daughter; she simply refused to return the daughter after ascheduled visit and unilaterally enrolled her in a new school. Finally, the record reflects that the[*3]mother's boyfriend did not have a good relationship with thechildren but, in contrast, the father's new wife and her son enjoyed a close and loving relationshipwith the children. Considering the totality of the circumstances, the record supports FamilyCourt's determination that the daughter's best interests are served by a change in custody in favorof the father (see Matter of Hetherton v Ogden, 79 AD3d at 1175).
We have reviewed the mother's remaining contention and find it to be without merit.
Mercure, J.P., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: In addition, the mother filed apetition seeking a set visitation schedule and, after a temporary order of visitation was entered,each party filed a petition alleging a violation of the temporary order by the other. Those petitionsare not at issue on this appeal.