| Matter of Parliman v Labriola |
| 2011 NY Slip Op 06845 [87 AD3d 1144] |
| September 27, 2011 |
| Appellate Division, Second Department |
| In the Matter of Bruce Parliman, Respondent, v ChristineLabriola, Appellant. |
—[*1] Law Offices of David V. Hasin, P.C., Central Valley, N.Y., for respondent. Dawn M. Shammas, Harrison, N.Y., Attorney for the Child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom an order of the Family Court, Orange County (Bivona, J.), entered September 28, 2010,which, after a hearing, granted the father's petition to modify a prior order of the same court datedOctober 16, 2009, so as to award him sole legal and physical custody of the subject child, withvisitation to her.
Ordered that the order entered September 28, 2010, is reversed, on the law, without costs ordisbursements, and the matter is remitted to the Family Court, Orange County, for a new hearingand determination of the petition, with all convenient speed, in accordance herewith; and it isfurther,
Ordered that pending a new hearing and determination of the petition, the child shall remainwith the father, and the visitation rights of the mother set forth in the order entered September 28,2010, shall remain in effect.
To modify an existing custody arrangement, there must be a showing of a change incircumstances such that modification is required to protect the best interests of the child (see Matter of Zeis v Slater, 57 AD3d793, 794 [2008]; Matter of Wirth vWirth, 56 AD3d 787, 788 [2008]). The best interests of the child are determined by areview of the totality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 172[1982]). "Factors to be considered include the quality of the home environment and the parentalguidance the custodial parent provides for the child, the ability of each parent to provide for thechild's emotional and intellectual development, the financial status and ability of each parent toprovide for the child, the relative fitness of the respective parents, and the effect an award ofcustody to one parent might have on the child's relationship with the other parent" (Matter of Marrero v Centeno, 71 AD3d771, 773 [2010] [internal quotation marks omitted]; see Cuccurullo v Cuccurullo, 21 AD3d 983, 984 [2005]).
Here, the father's petition for a change in custody was based primarily on the fact that thesubject child had come to live with him after the mother lost her job and home. However, themother testified that by the time of the hearing, she had found employment and housing. TheFamily Court stated in its determination that it was "unfortunate" that the mother "had to move,"leading the father to petition for custody, but it otherwise failed to mention any of the relevantfactors in [*2]deciding to modify the existing custodyarrangement so as to award the father sole legal and physical custody of the subject child.Instead, the Family Court's determination was based exclusively on the fact that there wasacrimony between the parties. While joint custody may be inappropriate where there isantagonism between the parents and they have demonstrated an inability to cooperate on mattersconcerning the child (see Matter ofGorniok v Zeledon-Mussio, 82 AD3d 767, 768 [2011]), any antagonism and inability tocooperate did not provide a basis for modifying the existing custody arrangement so as to awardthe father sole legal and physical custody (see Marcantonio v Marcantonio, 307 AD2d740, 741 [2003]).
Further, although our authority in custody matters is as broad as that of the Family Court sothat we can make our own determination on custody, the record is not sufficiently complete forus to do so (see Matter of Valenti vValenti, 57 AD3d 1131, 1132 [2008]; Matter of Ackley v Meldrum, 289 AD2d615, 616 [2001]). The matter was heard in a single day, with the only testimony coming from theparents, each leveling allegations against the other and, yet, the Family Court made no findingsof credibility. Any custody determination necessarily depends to a great extent upon anassessment of the character and credibility of the parties and witnesses, which the Family Court,having the opportunity to observe the witnesses, is in the best position to make (see Eschbachv Eschbach, 56 NY2d at 173; Cuccurullo v Cuccurullo, 21 AD3d at 984).Consequently, given this scant record, the lack of credibility findings, and the fact that the childhas been living with the father for nearly two years, the matter must be remitted to the FamilyCourt, Orange County, for a new hearing and determination (see Matter of Joseph F. v Patricia F., 32 AD3d 938, 939-940[2006]; Matter of Ackley v Meldrum, 289 AD2d at 616).
On remittal, the Family Court must appoint an independent forensic expert to examine andperform a full evaluation of the parents and the child (see Eschbach v Eschbach, 56NY2d at 173; Matter of Ackley v Meldrum, 289 AD2d at 617), and hold an in camerahearing with the child in order to ascertain his wishes (see Matter of Lincoln v Lincoln,24 NY2d 270 [1969]). Mastro, J.P., Balkin, Chambers and Lott, JJ., concur.