| Matter of Eunice G. v Michael G. |
| 2011 NY Slip Op 04786 [85 AD3d 1339] |
| June 9, 2011 |
| Appellate Division, Third Department |
| In the Matter of Eunice G., Respondent, v Michael G., Appellant.(And Another Related Proceeding.) |
—[*1] Craig Fritzsch, Binghamton, for respondent. Christopher A. Pogson, Binghamton, attorney for the child.
Stein, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered March 1, 2010, which, among other things, granted petitioner's application, in aproceeding pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the mother) and respondent (hereinafter the father) are the parents of adaughter (born in 1999). In 2006, Family Court (Pines, J.) awarded the parties joint legal custodyof the child, with primary physical custody to the mother and visitation to the father. In October2009, the mother commenced the first of these proceedings to modify the custody order, allegingthat the father, among other things, had inappropriately "drugged" the 10-year-old child withBenadryl at night and had taken nude photographs of her. The mother also filed a family offensepetition, seeking an order of protection for the child. Family Court issued a temporary order ofprotection that, among other things, directed the father to stay away from the child. Followingfact-finding and Lincoln hearings, Family Court granted the mother sole legal custody[*2]and limited the father's visitation to daytime visits in publicplaces.[FN1]The father appeals.
"Modification of an established custody arrangement requires a showing of a sufficientchange in circumstances reflecting a real need for change in order to insure the continued bestinterest of the child" (Matter of Rue vCarpenter, 69 AD3d 1238, 1239 [2010] [internal quotation marks and citation omitted];accord Matter of Scott QQ. v StephanieRR., 75 AD3d 798, 799 [2010]). Here, although Family Court did not articulate afinding that the mother had demonstrated a change in circumstances,[FN2]the record reveals ample evidence to support such a finding (see Matter of White v Cicerone, 80 AD3d 1102, 1103 [2011],lv denied 16 NY3d 711 [2011]; Matter of Bishop v Livingston, 296 AD2d 602,603 [2002]). The mother's modification petition alleges, among other things, that the child was"drugged up" on Benadryl while staying overnight at the father's residence and that "she goes tosleep with clothes on and wakes up without clothes on." While the mother did not offer evidenceto establish the allegations that the father had taken nude pictures of the child[FN3]or that he had inappropriately touched her, the father admitted to regularly administeringBenadryl to the child at night without a prescription and to removing some of the child's clothingwhile she slept. Family Court was not required to accept the father's explanation for these actionsand, in view of its unique opportunity to observe the witnesses in the course of the fact-findingand Lincoln hearings, its credibility determinations are entitled to great deference (see Matter of Hurlburt v Behr, 70AD3d 1266, 1268 [2010], lv dismissed 15 NY3d 943 [2010]; Matter of Siler v Wright, 64 AD3d926, 928 [2009]). Notably, the prior order of custody and visitation was based upon astipulation of the parties and " 'is entitled to less weight than a disposition after a plenary trial' "(Matter of Mehaffy v Mehaffy, 23AD3d 935, 936 [2005], lv dismissed 6 NY3d 807 [2006], quoting Matter of CarlJ.B. v Dorothy T., 186 AD2d 736, 737 [1992]; see Matter of Nephew v Nephew, 45 AD3d 1194, 1195 [2007]). Inour view, the proof supporting the allegations in the mother's petition was sufficient todemonstrate a change in circumstances and to warrant an inquiry into whether a modification ofthe prior order was in the child's best interests.
The testimony at trial also demonstrated that the now preadolescent child regularly returnedfrom visits with her father with dirty, greasy hair, dirty clothing, bad breath, an odor of urine andsometimes feces, and stains in her underwear. Additionally, the child returned to the mother'sresidence with head lice on more than one occasion. When confronted with these issues, thefather either denied there was a problem, blamed the child, or cited a lack of hot water in hisapartment. The record further reflects that the child's hygiene problems were resolved when sheceased visiting with the father at his residence. The father also testified that he regularly gave thechild Benadryl at night to help her sleep because she had a toothache and that he neither told themother that he did so nor obtained professional treatment for the toothache. [*3]Moreover, the father admitted that he permitted a 14-year-oldunrelated male to stay overnight at his residence on at least two occasions when the child wasthere because the child wanted him to. Considering all of the foregoing, we conclude that FamilyCourt properly determined that a modification of the prior order of custody and visitation waswarranted (see Matter of Taylor vFry, 63 AD3d 1217, 1218-1219 [2009]).
The father's remaining contentions have been reviewed and are unavailing.
Mercure, J.P., Rose, Malone Jr. and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote 1: Family Court also dismissed themother's family offense petition and terminated the temporary order of protection, but the motherdid not appeal from the order.
Footnote 2: In the order appealed from,Family Court did, however, order and adjudge "that [the mother] met her burden of proof toshow that a custody modification is warranted."
Footnote 3: The record reflects that thepolice were in possession of the cell phone on which the pictures were allegedly taken inconnection with their investigation of the allegations.