| Matter of Bouwens v Bouwens |
| 2011 NY Slip Op 05909 [86 AD3d 731] |
| July 14, 2011 |
| Appellate Division, Third Department |
| In the Matter of Kevin Bouwens, Appellant, v ChristineBouwens, Respondent. (And Two Other Related Proceedings.) |
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Kavanagh, J. Appeal from an order of the Family Court of Tioga County (Argetsinger, J.),entered March 15, 2010, which, in three proceedings pursuant to Family Ct Act article 6, grantedrespondent's motion to dismiss the petitions.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) married in 1995and have three children (born in 1994, 1998 and 2000). In 2001, the parties were divorced andthe mother was awarded custody of the children. However, in December 2008, an order wasissued on consent of the parties awarding the father custody of the oldest child, while the twoyounger children remained with their mother. Six months later, the father commenced theseproceedings seeking custody of the two younger children. After the father completed thepresentation of his evidence at the hearing, Family Court found that the father had failed todemonstrate that a sufficient change in circumstances had occurred since the order was filed thatwould warrant a modification of the existing custodial arrangement and granted the mother'smotion to dismiss the petitions. The father now appeals.
To prevail, the father was required to make a "showing of sufficient change in circumstancesreflecting a real need for change in order to insure the continued best interest of the child[ren]"(Matter of Fitzpatrick v Fitzpatrick,77 AD3d 1108, 1108-1109 [2010] [internal quotation marks and citations omitted]; see Matter of Witherow vBloomingdale, 40 AD3d 1203, 1204 [2007]). In support of his petitions, the fatherclaimed that since the order was entered, one [*2]of the childrenin the mother's custody had begun to exhibit profound behavioral problems and both children'sperformances at school had significantly deteriorated. He also alleged that, throughout thisperiod, the mother failed to involve him in medical decisions affecting the children and routinelyrefused to abide by the provision in the order that she arrange to transport the children so theycan visit with him. He also claimed that the mother had commingled various medications that sheprovides for their son when he visited with him and did not provide eyeglasses that their daughterhad desperately needed. Finally, the father contended that he could provide a more stable andwholesome environment for all three children in his home and that the two children now in themother's custody would benefit by being united with their older sibling.
Even if the evidence submitted by the father in support of these petitions were accepted astrue and accorded every favorable inference, it would not establish that a change in circumstanceshas occurred that would warrant a modification in the existing custodial arrangements (see Matter of Nikki O. v William N.,64 AD3d 938, 938 [2009], lv dismissed 13 NY3d 825 [2009]; Matter of Kerwin v Kerwin, 39 AD3d950, 951 [2007]). Specifically, in support of his petitions, the father submitted his owntestimony, as well as that of his current wife and the parties' oldest child.[FN1]Initially, we note that this child's testimony focused exclusively on the mother's conduct andconditions that existed in her home prior to the entry of the current order and, as such, cannotserve as a basis for concluding that a change in circumstances has occurred (see Matter of Fielding v Fielding, 41AD3d 929, 930 [2007]). As for the father's testimony, and that of his current wife, regardingthe mother's parenting ability, such testimony was not sufficient to establish that a change incircumstances has occurred (see Matterof Robert SS. v Ashley TT., 75 AD3d 780, 782 [2010]; Matter of Witherow vBloomingdale, 40 AD3d at 1204). There is no support in the record that the mother is solelyresponsible for the behavioral problems presently being encountered by one of the children orthat this issue exists as a direct result of conditions that exist in the mother's home or because ofher relationship with the child. In this regard, we note that the child's counselor testified thatthese behavioral problems were in large measure attributable to "the family dynamics which werea large problem for the child." Also, while the younger children's school performance hasundoubtedly deteriorated since the order has been entered—and may well be caused, atleast in part, by the acrimony that characterizes the present state of the parties'relationship—no competent evidence has been presented that this academic decline is dueto how the mother interacts with the children (see Matter of Tavernia v Bouvia, 12 AD3d 960, 961 [2004]). Also,the mother submits that she no longer commingles any of the children's medications prior to theirvisits and the eyeglasses for the one child have now been provided.[FN2]
Finally, the evidence received by Family Court establishes that both parties are equallyresponsible for their inability to communicate with each other regarding the children and no[*3]evidence has been presented that this situation will resolve ifthe father is granted custody of all three children (see Matter of Bronson v Bronson, 63 AD3d 1205, 1206 [2009]).Based on the foregoing, Family Court's decision to dismiss the father's petitions should in allrespects be affirmed (see Matter of Fitzpatrick v Fitzpatrick, 77 AD3d at 1109).
Mercure, J.P., Spain, Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: Family Court also heard thetestimony of the one child's therapist, who was called by the mother but was heard out of order.
Footnote 2: While the mother was, forfinancial reasons, unable to obtain eyeglasses for the child, the record shows that the father,during this same period, was not always current in the payment of child support.