| Matter of Anthony MM. v Jacquelyn NN. |
| 2012 NY Slip Op 00139 [91 AD3d 1036] |
| Jnury 12, 2012 |
| Appellate Division, Third Department |
| In the Matter of Anthony MM., Respondent, v JacquelynNN., Appellant. (And Another Related Proceeding.) |
—[*1] Vitanza, DiStefano & Dean, L.L.P., Norwich (Diane M. DiStefano of counsel), forrespondent. Frank A. Sarat, Homer, attorney for the child.
Malone Jr., J. Appeal from an order of the Family Court of Chenango County (DiStefano, J.),entered May 20, 2010, which, among other things, granted petitioner'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 one child (born in 2007). In 2007, both parties filed petitions seeking custody of thechild, and a temporary order granting custody to the mother was apparently entered. The motherthereafter sought to suspend the father's visitation, alleging, among other things, that shesuspected that the father was sexually abusing the child. The matter was referred to SupremeCourt (Garry, J.) and, upon the parties' consent, an order was entered granting the parties jointlegal custody of the child and ordering them to submit to a family evaluation by a psychologist.After the evaluation was completed, a consent order was entered in April 2008 that continuedshared custody of the child and required the mother to withdraw her allegations of sexual abusedue to a lack of evidence supporting them and seek counseling to address the issues raised in thepsychologist's report.[*2]
In August 2009, the father commenced a proceedingseeking sole custody of the child, alleging that the mother continued to insinuate that he wassexually abusing the child. The mother thereafter filed a petition likewise seeking sole custody,alleging, among other things, that the father was disparaging her in front of the child. Following afact-finding hearing, Family Court dismissed the mother's petition and awarded sole custody tothe father. The mother appeals.
"An existing custody arrangement may be modified upon a showing that there has been asubstantial change in circumstances and modification is required to ensure the best interests ofthe child[ ]" (Matter of Hayward vThurmond, 85 AD3d 1260, 1261 [2011] [citations omitted]; see Matter of Dobies v Brefka, 83AD3d 1148, 1149 [2011]). Although Family Court did not specifically make a finding ofchange in circumstances, upon our review of the record, we find that the evidence of thedeterioration of the parties' relationship constituted a sufficient change in circumstances such thatthe court's consideration of whether a change in custody was necessary to protect the child's bestinterests was warranted (see Matter ofBond v MacLeod, 83 AD3d 1304, 1305 [2011]; Matter of Williams v Williams, 66 AD3d 1149, 1150-1151[2009]). To that end, the record contains substantial evidence to support the court's decision thatan award of sole custody to the father is in the child's best interests.
The record establishes that, even after she agreed to withdraw her allegations, the mothercontinued to insinuate that the father was sexually abusing the child, despite the fact that noevidence of the alleged abuse was ever found by medical professionals who examined the child.The evidence also established that the mother was frequently hostile toward the father and hisfamily, often made disparaging remarks about them in the child's presence and behavedinappropriately during the parties' visitation exchanges. A psychologist who evaluated the mothertestified that she had personality disorders that caused her to, among other things, display littleregard for the negative consequences that her actions had on the father's relationship with thechild and, if left untreated, her disorders could result in the child being alienated from the father.Although a social worker with whom the mother had sought counseling stated that she disagreedwith the psychologist's assessment, Family Court specifically found the social worker's testimonyto be of little value because the counseling did not address the personality disorders identified inthe psychologist's report, as had been directed in the April 2008 consent order.
Although it is apparent that both parties are loving parents and capable of sufficientlyproviding for the child's physical needs, the father has demonstrated that he is currently betterable to provide for the child's overall well-being and is more likely than the mother to encourageand nurture the child's relationship with the other parent, particularly considering the mother'srepeated allegations and insinuations that the father sexually abused the child (see Matter of Martinez v Hyatt, 86AD3d 571, 572 [2011], lv denied 17 NY3d 713 [2011]; Young v Young, 212AD2d 114, 122 [1995]). Such unfounded allegations, together with the persistent hostility thatthe mother demonstrates toward the father and his family, were appropriately viewed by FamilyCourt as efforts aimed to interfere with the child's relationship with the father (see Posporelis v Posporelis, 41 AD3d986, 991 [2007]; Matter of Sloand vSloand, 30 AD3d 784, 786 [2006]). Considering the totality of the circumstances here,and according deference to Family Court's ability to assess the credibility of the witnesses andevaluate the conflicting testimony (seeMatter of Bush v Bush, 74 AD3d 1448, 1450 [2010], lv denied 15 NY3d 711[2010]; Matter of Siler v Wright, 64AD3d 926, 928 [2009]), we find that the award of sole custody to the father is supported bysubstantial evidence. Finally, "although by no means determinative, this conclusion is in accordwith the position advanced by the [attorney for the [*3]child]"(Matter of Siler v Wright, 64 AD3d at 929).
We have considered the mother's remaining contentions and find them to be unpersuasive.
Spain, J.P., Lahtinen, Stein and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.