| Matter of Clark v Ingraham |
| 2011 NY Slip Op 07315 [88 AD3d 1079] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Corey L. Clark,Respondent-Appellant, v Nicole Ingraham,Appellant-Respondent.. |
—[*1] Ward & Murphy, Groton (Liam G.B. Murphy of counsel), for appellant-respondent. Allen E. Stone, Vestal, for respondent-appellant. Peter Fee, Vestal, attorney for the child.
McCarthy, J. Cross appeals from an order of the Family Court of Broome County(Connerton, J.), entered January 19, 2010, which granted petitioner's application, in a proceedingpursuant 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 2008). The parties lived together with the child in the City of Binghamton, BroomeCounty until the summer of 2008. The father then moved to the City of Norwich, ChenangoCounty. Upon the parties' consent, Family Court issued an order in March 2009 awarding jointlegal custody, primary residence to the mother and visitation to the father on alternate weekends.In May 2009, the father commenced this proceeding seeking a modification of custody.Following a hearing, the court continued joint legal custody, but granted primary residence to thefather and visitation to the mother three weekends per month, with the father responsible fortransportation. The parties cross-appeal.
The mother contends that Family Court erred by not analyzing this as a relocation case underMatter of Tropea v Tropea (87 NY2d 727, 740-741 [1996]). As the mother did not raise[*2]this argument in Family Court, it is unpreserved for ourreview.
Treating this as a typical modification case, Family Court should have dismissed the petition.The party seeking modification of a custody order must first prove that there has been a sufficientchange in circumstances since the entry of the prior order to require the court to reexamine theissue of custody (see Matter of Rosi vMoon, 84 AD3d 1445, 1445-1446 [2011]; Matter of Opalka v Skinner, 81 AD3d 1005, 1005 [2011]). A bestinterest analysis should only be undertaken after this threshold showing has been made (see Matter of Fox v Grivas, 81 AD3d1014, 1015 [2011]; Matter of Chasev Benjamin, 44 AD3d 1130, 1131 [2007]).
Here, Family Court deemed unsubstantiated the father's allegations that the child sufferedinjuries in the mother's care, that her home was unsafe and unsanitary, that she did not properlyadminister the child's medication and that the child's asthma attacks have increased. The courtfound as a change in circumstances that, in spite of the child's severe asthma, the mother hired ababysitter who smokes, the mother smokes and, "[a]lthough they claim they do not smoke aroundthe [c]hild, the [c]ourt is not entirely convinced." The mother was never asked whether shesmoked inside or around the child; thus, the court incorrectly stated that the mother made such a"claim." The additional circumstances that the court mentioned as causes for concern were thatthe child's doctor found the father easier to deal with regarding medical issues and that themother recently contacted the doctor's office in a frantic manner to obtain replacement medicalequipment, then failed to call back and notify them that she had located the missing equipment.While the father was considered easier to deal with, the doctor also testified that she could workwith any parent. Although the doctor testified that the asthmatic child should not be exposed tosmoke, the court's supposition—rendering it unsure if the mother or her chosen babysitterssmoke in the child's presence—is insufficient to establish a change in circumstances,especially considering the lack of proof regarding whether the mother smoked prior to the entryof the March 2009 order. The father failed to prove a change in circumstances in the two monthsfollowing that order so as to warrant a reexamination of the parties' custody arrangement. Hence,as the court's decision does not have a sound and substantial basis in the record, the petitionshould be dismissed (see Matter of ScottQQ. v Stephanie RR., 75 AD3d 798, 799-800 [2010]; Matter of Chase vBenjamin, 44 AD3d at 1131-1132).
Mercure, J.P., Spain, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law, without costs, and petition dismissed.