| Matter of Yearwood v Yearwood |
| 2011 NY Slip Op 09138 [90 AD3d 771] |
| December 13, 2011 |
| Appellate Division, Second Department |
| In the Matter of Anwar F. Yearwood, Appellant, v Tara M.Wilson Yearwood, Respondent. |
—[*1] Donna M. McCabe , East Atlantic Beach, N.Y., for respondent. Rita A. Pelt, Uniondale, N.Y., Attorney for the Child.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals froman order of the Family Court, Nassau County (Bennett, J.), dated November 24, 2010, which,after a fact-finding hearing, (a) denied his petition to modify an order of custody of the samecourt dated January 10, 2008, and entered upon the parties' consent, so as to award him sole legaland residential custody of the parties' child, (b), in effect, vacated an order of the same courtdated February 14, 2008, awarding him temporary sole legal and residential custody of the childand awarding the mother certain supervised visitation, as modified in orders dated December 1,2008, June 9, 2009, August 10, 2009, and May 24, 2010, respectively, so as to award the mothercertain limited unsupervised visitation and visitation supervised by the maternal grandmother, (c)dismissed the proceeding, and (d) reinstated the determinations in the order dated January 10,2008, awarding the parties joint legal custody of their child, with residential custody to themother, and liberal visitation to him. By decision and order on motion dated December 17, 2010,this Court granted that branch of the father's motion which was to stay enforcement of the orderdated November 24, 2010, pending the hearing and determination of this appeal. Justice Cohenhas been substituted for former Presiding Justice Prudenti (see 22 NYCRR 670.1 [c]).
Ordered that the order dated November 24, 2010, is reversed, on the law, on the facts, and inthe exercise of discretion, without costs or disbursements, the father's petition to modify the orderdated January 10, 2008, is granted, the father is awarded sole legal and residential custody of thechild, and the matter is remitted to the Family Court, Nassau County, for further proceedings toestablish an appropriate visitation schedule for the mother; and it is further,
Ordered that pending further order of the Family Court, Nassau County, the mother shallhave unsupervised visitation with the child every Tuesday and Friday from 5:00 p.m. until 7:00p.m., on alternate weekends from Friday at 7:00 p.m. until Sunday at 7:00 p.m., and from 11:00a.m. on Christmas Day until 7:00 p.m. on New Year's Eve, or other times as the parties mayagree, and the father is to provide the mother with all information pertaining to the child's health,education, welfare, and extracurricular activities and to provide the respective schools, doctors,and activity coordinators with a release authorizing provision to the mother of all informationprovided to the father.[*2]
The parties herein are divorced. They are the parents of achild, born February 27, 2002. After the parties' initial separation, upon their consent, the FamilyCourt issued an order, dated May 17, 2007, awarding the mother legal and residential custody ofthe child and awarding the father parenting time. After the father sought to modify thisarrangement, the parties amended their stipulation so that they would have joint legal custody ofthe child, with the mother retaining residential custody, and the father's parenting time would beincreased.
In early 2008 the father filed a petition seeking sole legal and residential custody of the child,in which he alleged that the mother's mental condition should preclude her from having custodyof their child. The father's petition specified that the mother had recently been hospitalized in apsychiatric unit at a local hospital, that the mother had left the child in the care of the maternalgrandparents during her hospitalization, and that the maternal grandparents had, in turn, askedthe father to take care of the child because the maternal grandparents were scheduled to take theirannual vacation in another country. Pending a hearing on the father's petition, the Family Courtawarded the father temporary sole legal and residential custody of the child, and awarded themother temporary, professionally supervised visitation and, later, both unsupervised visitationand visitation supervised by the maternal grandparents. After a hearing on the father's petition,the Family Court denied the father's petition and awarded joint legal custody to both parents, withresidential custody of the child to the mother. The father appeals.
When a modification of an existing custody arrangement is sought, the petitioner must showa change in circumstances such that modification is necessary to protect the best interests of thechild (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Conway v Conway, 89 AD3d936, 936 [2d Dept 2011]; Matter ofSparacio v Fitzgerald, 73 AD3d 790, 790 [2010]). "[T]he Family Court has broaddiscretion in fashioning a remedy in matters of custody and visitation, with the paramountconcern being the best interests of the child" (Matter of Schick v Schick, 72 AD3d 1100, 1101 [2010], quoting Matter of Pignataro v Davis, 8 AD3d487, 488-489 [2004]; see also Eschbach v Eschbach, 56 NY2d 167 [1982]). Indetermining the best interests of the child, the Family Court must review the totality of thecircumstances (see Eschbach v Eschbach, 56 NY2d at 171; Matter of Sparacio vFitzgerald, 73 AD3d at 791). Under the circumstances of this case, the Family Court'sdetermination that the evidence did not demonstrate a sufficient change in circumstances is notsupported by a sound and substantial basis in the record. Moreover, the award to the father oflegal and residential custody is in the child's best interests.
Where the initial custody determination is made upon the Family Court's adoption of anagreement reached by the parties, custody may nonetheless be modified where it is shown that,viewing the totality of the circumstances, a change in custody is in the child's best interests(see Eschbach v Eschbach, 56 NY2d at 172; see also Friederwitzer vFriederwitzer, 55 NY2d 89, 96 [1982]). This is so because "[n]o agreement of the parties canbind the court to a disposition other than that which a weighing of all of the factors involvedshows to be in the child's best interest" (Friederwitzer v Friederwitzer, 55 NY2d at 95; see Matter of Grigoli v Grigoli, 29AD3d 792 [2006]).
The factors to be considered in making a determination with respect to the best interests ofthe child include "the quality of the home environment and the parental guidance the custodialparent provides for the child, the ability of each parent to provide for the child's emotional andintellectual development, the financial status and ability of each parent to provide for the child,the relative fitness of the respective parents, and the effect an award of custody to one parentmight have on the child's relationship with the other parent" (Matter of Elliott v Felder, 69 AD3d 623 [2010]; see Eschbach vEschbach, 56 NY2d at 171-172). Here, the record reveals that both parties love the child andare capable of providing a home that is nurturing. Both parties recognize the importance ofproviding the child with an education where he will be intellectually supported and challenged.Both parties are financially stable.
Mental illness does not, in and of itself, render a parent unfit (see e.g. Matter of Sloand v Sloand, 30AD3d 784, 785 [2006]). The record reflects that it took some time to partially stabilize themother's mental health condition, which involved, among other things, the arrest of her auditoryhallucinations, the ascertainment of the correct dosage of medication, and the provision of asufficient education to the mother about the illness so that she could appreciate her illness inorder [*3]to effectively participate in her treatment. However, therecord did not reveal that the mother's condition had completely stabilized. We find that, whilethe mother is not unfit to have custody of the child, the father has been the more consistently fitparent.
We next weigh the parties' relationship and conclude that the nature of their relationshipmakes joint custody unworkable and no longer in the best interests of the child (see Matter of Manfredo v Manfredo, 53AD3d 498, 500 [2008]; Granata v Granata, 289 AD2d 527, 528 [2001]; cf. Matter of Grasso v Grasso, 51AD3d 920, 921 [2008]).
Accordingly, we reverse the order appealed from, grant the father's petition, award sole legaland residential custody of the child to the father, and remit the matter to the Family Court,Nassau County, for further proceedings to establish an appropriate visitation schedule for the mother. Moreover, the father, as the custodial parent, must furnish themother with all information pertaining to the child's health, education, welfare, andextracurricular activities and provide all relevant schools, doctors, and activity coordinators witha release authorizing provision to the mother of all information concerning the child. Rivera, J.P.,Austin, Roman and Cohen, JJ., concur.
[As Amended, see 2012 NY Slip Op 70412(U).]