| Matter of Martin v Mills |
| 2012 NY Slip Op 03247 [94 AD3d 1364] |
| April 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of Robert J. Martin, Respondent, v Kathi J. Mills,Appellant. |
—[*1] Larisa Obolensky, Delhi, attorney for the child.
Rose, J. Appeal from an order of the Family Court of Broome County (Connerton, J.),entered March 28, 2011, which partially granted petitioner's application, in a proceeding pursuantto 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 son born in 2001. The parties separated after the child's birth and, in September2002, both filed petitions for custody. As part of those proceedings, a Family Ct Act §1034 investigation of the mother indicated her for inadequate guardianship based on her drivingwhile intoxicated with the child in the vehicle. The mother was ordered to arrange for an alcoholevaluation and, pursuant to a temporary order that was made permanent in 2003, the partiesconsented to joint custody with the mother having primary physical custody and the father havingvisitation. In June 2010, the father commenced this proceeding seeking sole custody of the childand alleging a change in circumstances based on the mother's excessive drinking and domesticabuse between the mother and her boyfriend. After both a hearing and a Lincoln hearing,Family Court continued joint custody but awarded the father primary physical custody. Themother appeals.
Initially, we disagree with the mother's contention that the father failed to sustain his burdenon the threshold issue of whether there had been a sufficient change in circumstances [*2]since the 2003 order warranting a review of the issue of custody soas to insure the continued best interests of the child (see Matter of Prefario v Gladhill, 90 AD3d 1351, 1352 [2011]; Matter of Arieda v Arieda-Walek, 74AD3d 1432, 1433 [2010]). The mother argues that her drinking cannot be considered achange in circumstances because it existed—and the father was aware of it—at thetime of the original order. She also argues that any issues regarding domestic abuse wereresolved because she ended her relationship with her boyfriend and Family Court improperlyconsidered alcohol-related incidents that postdated the petition.
Although Family Court's decision does not explicitly find a change in circumstances oridentify the specific circumstances that it relied upon, our authority in custody cases "is as broadas that of the hearing court" (Matter ofAylward v Bailey, 91 AD3d 1135, 1136 [2012]). Accordingly, we may independentlyreview the record to determine whether there has been a change in circumstances (see Matterof Prefario v Gladhill, 90 AD3d at 1353; Matter of Christopher T. v Jessica U., 90 AD3d 1092, 1093-1094[2011]). In doing so, we will not consider the mother's August 2010 arrest and subsequentconviction for driving while intoxicated or an October 2010 argument between the allegedlyintoxicated mother and her oldest son that resulted in police involvement (see Matter of Opalka v Skinner, 81AD3d 1005, 1005 [2011]; Matter of Risman v Linke, 235 AD2d 861, 861-862[1997]).[FN*]Nevertheless, upon our review of the entire record, "we find ample evidence of a change incircumstances necessitating reconsideration of the [child's] best interests" (Matter ofMcGovern v McGovern, 58 AD3d 911, 914 [2009]).
The father's concern was based on the child's reports to him that the police were regularlybeing called to the mother's residence, and he presented evidence of a disturbing number ofinstances between the entry of the order setting custody in 2003 and the filing of the petition in2010 when the police were called to respond to conflicts between the mother, who wasintoxicated, and her boyfriend. The mother did not deny that there were multiple incidents ofdomestic abuse involving her boyfriend, at least one of which resulted in the boyfriend beingtaken from the residence in handcuffs, but she testified that she had since ended her relationshipwith that particular boyfriend. She admitted that he "was a drunk," that she would drink with himand that she would drink in front of the child. Significantly, in our view, the mother alsoacknowledged that she remained friends with the boyfriend and continued to have contact withhim.
Family Court appears to have discredited the mother's testimony. As an example, the courtnoted that, although the mother claimed that she had obtained the 2002 court-ordered alcoholevaluation, there was no such evaluation in the court's file to corroborate that claim. Accordingdeference to such credibility determinations (see Matter of Lowe v O'Brien, 81 AD3d 1093, 1094 [2011], lvdenied 16 NY3d 713 [2011]), the evidence of the mother's continuing, unabated problemwith alcohol and a history of domestic abuse that may not be completely resolved was sufficientto constitute a change in circumstances requiring a review of the existing custody arrangement inorder to determine whether it continued to be in the child's best interests (see Matter of Rue v Carpenter, 69AD3d 1238, 1239 [2010]; Matter ofGraham v Graham, 24 AD3d 1051, 1052-1053 [2005], lv denied 6 NY3d 711[2006]; Matter of Banks v Hairston, 6 [*3]AD3d 886, 887[2004]; Matter of Hudson v Hudson, 279 AD2d 659, 660-661 [2001]).
Family Court is required to consider a variety of factors in making such a best interestsdetermination, including the quality of the respective home environments, the length of time thepresent custody arrangement was in place, the preservation of stability in the child's life, eachparent's past performance, relative fitness and ability to provide for the child's intellectual andemotional development, and the effect the award of custody would have on the child'srelationship with the noncustodial parent (see Matter of Timothy N. v Gwendolyn N., 92 AD3d 1155, 1157[2012]; Matter of Knight v Knight,92 AD3d 1090, 1091-1092 [2012]). As the mother correctly observes, however, FamilyCourt did not set forth the essential facts of its best interests determination, either orally or inwriting (see CPLR 4213 [b]). Further, as the record is insufficient for us to make anindependent determination in this regard, we must remit for that purpose (see Matter of Rivera v LaSalle, 84AD3d 1436, 1440 [2011]; Matter ofWhitaker v Murray, 50 AD3d 1185, 1186-1187 [2008]; cf. Matter of Valenti v Valenti, 57AD3d 1131, 1132 [2008], lv denied 12 NY3d 703 [2009]). Upon remittal, FamilyCourt may impose additional conditions upon the parties as it deems appropriate or hearadditional relevant evidentiary proof to assess the circumstances as they currently exist (seeMatter of McGovern v McGovern, 58 AD3d at 915; Matter of Whitaker v Murray,50 AD3d at 1187). In the interim, physical custody should remain temporarily with the fatheruntil the parties' first appearance in Family Court.
Peters, P.J., Lahtinen, Malone Jr. and Kavanagh, JJ., concur. Ordered that the order isreversed, on the law, without costs, and matter remitted to the Family Court of Broome Countyfor further proceedings not inconsistent with this Court's decision, and, pending such furtherproceedings, temporary physical custody of the child shall remain with petitioner.
Footnote *: These events occurred after thepetition was filed and there was no motion to conform the pleadings to the proof (seeCPLR 3025 [c]).