| Matter of Coley v Sylva |
| 2012 NY Slip Op 03692 [95 AD3d 1461] |
| May 10, 2012 |
| Appellate Division, Third Department |
| 2—In the Matter of Brian Coley, Respondent, v DiannaSylva, Appellant. (And Three Other Related Proceedings.) |
—[*1] Ted J. Stein, Woodstock, for respondent. Daniel Gartenstein, Kingston, attorney for the children.
Spain, J. Appeal from an order of the Family Court of Ulster County (McGinty, J.), enteredJanuary 24, 2011, which, among other things, granted petitioner's application, in fourproceedings 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 parents of adaughter (born in 2003) and a son (born in 2004). Pursuant to a Family Court order based upon astipulation entered in May 2010, the parties were granted joint legal and physical custody of thechildren, with physical custody alternating weekly between the parties. Subsequently, the fatherfiled petitions alleging that the mother violated the prior custody order and seeking amodification of the order. The mother also filed petitions seeking modification of the priorcustody order. Following a fact-finding hearing, at which the mother did not appear but wasrepresented by counsel, Family Court awarded sole legal and physical custody to the father, withthe mother having parenting time every weekend during the school year and weekdays during thesummer. The mother now appeals.[*2]
"Where a voluntary agreement of joint custody is enteredinto, it will not be set aside unless there is a sufficient change in circumstances since the time ofthe stipulation and unless the modification of the custody agreement is in the best interests of thechildren" (Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999], lv denied94 NY2d 790 [1999] [citation omitted]; accord Matter of Rosi v Moon, 84 AD3d 1445, 1445-1446 [2011]).Here, there is evidence that there has been a breakdown in the relationship between the partiesand they are unable to effectively communicate or cooperate with parenting decisions. The fathertestified that he has problems communicating with the mother as her phone is either disconnectedor she fails to answer his calls. The father further testified that when he did speak with themother, she would not provide him with any details regarding the children while in her custody,including who was watching the children while the mother was working.[FN*]Further, the father provided unrebutted testimony that the weekly change of custody causedanxiety for the children. According great deference to Family Court's credibility determinations(see Matter of Lewis v Tomeo, 81AD3d 1193, 1195 [2011]), we find that the impact of weekly custody transitions on thechildren and the failure of the mother to effectively communicate with the father about thechildren's welfare "constituted a change in circumstances regarding their joint legal custody" (Matter of Spiewak v Ackerman, 88AD3d 1191, 1192 [2011]; seeMatter of Williams v Williams, 66 AD3d 1149, 1150-1151 [2009]).
Determining whether a modification of a custody order is in the children's best interestsinvolves consideration of various factors, including "the quality of each parent's homeenvironments, their past performance and stability, and each parent's relative fitness and ability toprovide for the child[ren]'s intellectual and emotional development" (Matter of Calandresa v Calandresa, 62AD3d 1055, 1056 [2009]; accordMatter of Hughes v Hughes, 80 AD3d 1104, 1104 [2011]). Here, the record reflects thatthe father and his spouse are both employed and provide a stable home for the children and thespouse's children. The father has undertaken all the medical decisions involving the children, andboth he and his spouse are very involved in the children's education. We note that the motherfailed to appear at the fact-finding hearing to support her own petitions for custody of thechildren and oppose the father's petitions. While there is no evidence from the mother regardingthe stability of her home in the record, the father testified that he found the mother's four otherchildren, ranging in age from 2 to 16, at her home unsupervised while she was out of town forseveral days. Based upon the evidence presented, we conclude that Family Court's determination,that it was in the best interests of the children to grant legal and physical custody of them to thefather, is supported by a sound and substantial basis in the record and it will not be disturbed(see Matter of Spiewak v Ackerman, 88 AD3d at 1192-1193; Matter of Siler v Wright, 64 AD3d926, 928 [2009]).
Lahtinen, J.P., Malone Jr., Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.
Footnote *: The prior custody orderspecifically required that, while in the mother's custody, the children were to be in the care of themother's sister after school or attend an after school program.