| Matter of Hughes v Hughes |
| 2011 NY Slip Op 00457 [80 AD3d 1104] |
| January 27, 2011 |
| Appellate Division, Third Department |
| In the Matter of William Hughes, Respondent, v Elizabeth Hughes,Appellant. (And Another Related Proceeding.) |
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Cardona, P.J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered August 26, 2009, which granted petitioner's application, in two proceedings pursuant toFamily Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the divorcedparents of a daughter (born in 2004) and a son (born in 2006). In 2007, the parties agreed upon avisitation schedule, which was incorporated into a 2008 order, whereby they shared joint custodyand alternated physical custody on a weekly basis. When the daughter reached kindergarten agein 2009, the parties, who live in different school districts, cross-petitioned for physical custody ofthe children. Following fact-finding and Lincoln hearings, the court awarded primaryphysical custody to the father, with the mother having the children on weekends from Fridayuntil Sunday, for one evening each week, four weeks during the summer, and on alternate orshared holidays, as arranged by the parties. The mother appeals.
Where, as here, a child's entry into school necessitates modification of the physical [*2]custody arrangement (see Ehrenreich v Lynk, 74 AD3d 1387, 1390 [2010]; Matter of Williams v Boger, 33 AD3d1091, 1092 [2006]), the court must determine what custodial arrangement will serve thechild's best interests, taking into consideration "a number of factors, 'including the quality of eachparent's home environments, their past performance and stability, and each parent's relativefitness and ability to provide for the child['s] intellectual and emotional development' " (Matter of Jeker v Weiss, 77 AD3d1069, 1070 [2010], quoting Matterof Calandresa v Calandresa, 62 AD3d 1055, 1056 [2009]). The court will also considerhow the award of custody to one parent will affect the child's relationship with the other parent(see Matter of Zwack v Kosier, 61AD3d 1020, 1022 [2009], lv denied 13 NY3d 702 [2009]; Matter of Goldsmith v Goldsmith, 50AD3d 1190, 1191-1192 [2008]). The mother contends that Family Court did not fullyconsider the totality of the circumstances, but rather relied on the mistaken conclusion that sheobstructed the father's relationship with the children.
"In light of Family Court's ability to evaluate conflicting testimony and assess the credibilityof the relevant witnesses first hand, we accord great deference to its factual findings and will notset them aside unless they lack a sound and substantial basis in the record" (Matter of Jeker vWeiss, 77 AD3d at 1070 [citations omitted]; see Matter of Goldsmith v Goldsmith,50 AD3d at 1192). Here, the court's decision reflects its thorough analysis of the relevant factorsin reaching the conclusion that both parents "love the children, make suitable arrangements forthe children and have adequate premises for them." The record fully supports that conclusion.The court's further conclusion that the mother has hindered the children's relationship with thefather also has a sound and substantial basis in the record. It is not disputed that in 2007, as theparties' marriage was breaking down, the mother moved the children and many householdfurnishings out of the marital home while the father was at work, without his knowledge andwithout leaving him any notice as to where they had gone. She did not contact him for two weeksthereafter. Furthermore, in 2008 the mother failed to comply with a court order regarding holidayvisitation. Additionally, the father testified that the mother did not share the children's medicalinformation with him, as well as information relating to the preschool program that the daughterattended during her alternate weeks with the mother. While the mother claims that Family Courtplaced undue weight on this one factor, it is important to note that it is the primary point ofdistinction between the parties. Moreover, it is of considerable importance to the children'swell-being that the parent having physical custody foster the children's relationship with thenoncustodial parent. Under the circumstances, we find no reason to disturb Family Court'sdetermination.
Malone Jr., Stein, McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.