| Matter of Wilson v Hendrickson |
| 2011 NY Slip Op 07323 [88 AD3d 1092] |
| October 20, 2011 |
| Appellate Division, Third Department |
| In the Matter of Russell D. Wilson, Appellant, v KaitlinHendrickson, Respondent. (And Another Related Proceeding.) |
—[*1] Matthew C. Hug, Troy, for appellant. Eugene P. Grimmick, Troy, for respondent. Charles W. Thomas, Troy, attorney for the child.
Peters, J.P. Appeal from an order of the Family Court of Rensselaer County (James, J.H.O),entered August 23, 2010, which, among other things, granted respondent's application, in twoproceedings pursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are the unmarriedparents of a daughter born in 2005. Pursuant to a July 2008 order entered on consent, the partiesshared joint legal custody and alternated physical custody weekly. In 2010, when the child'sattendance at kindergarten was imminent and the parties resided in different school districts,these proceedings were commenced. Both parents sought physical custody so that the child couldattend a school in their locale. The mother also alleged the father's lack of gainful employmentand inferior living arrangements as a basis for modification. Following a fact-finding hearing,Family Court granted physical custody to the mother with ample visitation time to the father,including the first three weekends of each month and alternate summer vacations. The father nowappeals.
Initially, we are unpersuaded by the father's contention that Family Court erred in [*2]limiting the evidence presented to events occurring after the July2008 consent order. Notably, at a point early on in the hearing, Family Court stated its intent toso limit the proof, and the father's counsel consented to this limitation (see Matter of Morganv Becker, 245 AD2d 889, 892 [1997]; cf. Matter of Sharyn PP. v Richard QQ., 83 AD3d 1140, 1143[2011]). Furthermore, while custody modification proceedings require a full and comprehensivehearing and proof relevant to the best interests of the child should not be unduly restricted (see Matter of Tarrance v Mial, 22AD3d 965, 966 [2005]; Matter of Stukes v Ryan, 289 AD2d 623, 624 [2001]), it isequally true that Family Court is "vested with broad discretion to determine the scope of theproof to be adduced" (Matter of Painter v Painter, 211 AD2d 993, 995 [1995]; see Matter of Cool v Malone, 66 AD3d1171, 1173 [2009]; Matter of Tarrance v Mial, 22 AD3d at 966; Matter of Stukesv Ryan, 289 AD2d at 624). Since each party's petition relied solely upon recent conductand/or circumstances as a basis to modify the prior custody order, we cannot conclude thatFamily Court abused its discretion in limiting the proof in this regard (see Matter of Tarrancev Mial, 22 AD3d at 966; Matter of Palmer v Palmer, 284 AD2d 612, 613-614[2001]; Matter of Risman v Linke, 235 AD2d 861, 861-862 [1997]).
Next, we find a sound and substantial basis for Family Court's award of primary physicalcustody to the mother. Alteration of an existing custody arrangement "requires a showing of achange in circumstances reflecting a real need for change in order to insure the continued bestinterest[s] of the child" (Matter ofHenderson v MacCarrick, 74 AD3d 1437, 1439 [2010] [internal quotation marks andcitations omitted]; see Matter of Dobiesv Brefka, 83 AD3d 1148, 1149 [2011]; Matter of Siler v Wright, 64 AD3d 926, 928 [2009]). The parties donot challenge Family Court's finding that the child's attainment of school age, coupled with thefact that the mother and father reside in different school districts, constitute a sufficient change incircumstances warranting a modification of the shared physical custody arrangement (see Matter of Hughes v Hughes, 80AD3d 1104, 1104 [2011]; Ehrenreich v Lynk, 74 AD3d 1387, 1390 [2010]; Matter of Williams v Boger, 33 AD3d1091, 1092 [2006]; Matter of Berghorn v Berghorn, 273 AD2d 595, 596 [2000]). Toassess which custodial arrangement would serve the child's best interests, the court was requiredto take into consideration a variety of factors, such as "the quality of each parent's homeenvironments, their past performance and stability, and each parent's relative fitness and ability toprovide for the child['s] intellectual and emotional development" (Matter of Hughes vHughes, 80 AD3d at 1104 [internal quotation marks and citations omitted]; see Matter of Lowe v O'Brien, 81AD3d 1093, 1095 [2011], lv denied 16 NY3d 713 [2011]).
Here, Family Court found that, although both the mother and father are loving parents andhave been able to effectively coparent their daughter, the mother could afford "more stability,guidance and consistency in the child's daily life." More specifically, the court noted that thefather has no vehicle and must rely on others for transportation, and maintains only sporadicseasonal employment as a landscaper working approximately 20 hours per week. Although thefather asserted that his gross income the previous year was $50,000, he receives public assistancein the form of Section 8 housing and food stamps. In that regard, the father lives on one level ofhis sister's house, with a significant portion of the rent subsidized through Section 8, while hissister and her husband live in the basement with their son. Family Court stressed the fact that,while living with her father, the child does not attend a day care or preschool program, butinstead stays home during the day and is mainly in the company of adults. Testimony at thehearing also revealed that the father inappropriately discussed school and custody issues with thechild, causing her to become upset and cry.[*3]
The mother, on the other hand, has steady employmentand lives with her boyfriend and their infant child in a two-bedroom apartment, where the subjectchild has her own room. During the mother's scheduled weeks of custodial time, the childregularly visits extended family for family gatherings at the home of her maternal grandparents,who live approximately 15 minutes away from the mother and are always available as a resource.Furthermore, as Family Court found, the mother enrolled the child in a "pre-K" program acrossthe street from her place of employment where, contrary to her environment during the father'scustodial time, the child is able to make friends and interact with children her own age. Notably,the mother pays tuition for the "pre-K" program every week in order to keep a slot open for thechild, even though she has the child every other week and receives no financial contribution fromthe father. The evidence also established that the mother has demonstrated a willingness tofacilitate the father's custodial time by transporting the child to and from all visits with him.
Contrary to the father's contention, the fact that Family Court may have placed moreimportance on certain evidence in deciding what was in the child's best interests does not meanthat it failed to consider all of the relevant factors (see Matter of Wentland v Rousseau, 59 AD3d 821, 823 [2009]; see also Malcolm v Jurow-Malcolm, 63AD3d 1254, 1257 n [2009]). Upon our review of the record and according deference toFamily Court's factual findings and credibility determinations (see Matter of Arieda v Arieda-Walek,74 AD3d 1432, 1434 [2010]), we cannot say that the court failed to properly weigh therelevant factors or that its determination to award physical custody to the mother lacks a soundand substantial basis (see Matter of Hughes v Hughes, 80 AD3d at 1105; Matter of Richardson v Alling, 69AD3d 1062, 1063 [2010]; Matter ofDickerson v Robenstein, 68 AD3d 1179, 1180 [2009]; Matter of Smith v Smith, 61 AD3d1275, 1278 [2009]).
Spain, Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed, withoutcosts.