| Matter of O'Loughlin v Sweetland |
| 2012 NY Slip Op 06145 [98 AD3d 983] |
| September 12, 2012 |
| Appellate Division, Second Department |
| In the Matter of John O'Loughlin, Respondent, v Anna M.Sweetland, Now Known as Anna Cyburt, Appellant. |
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Long, Tuminello, Besso, Seligman, Werner & Sullivan, LLP, Bay Shore, N.Y. (Thomas K.Campagna of counsel), for respondent. Judith Ellen Stone, Merrick, N.Y., attorney for the child.
In a child custody proceeding pursuant to Family Court Act article 6, the mother appealsfrom (1) an order of the Family Court, Suffolk County (Lynaugh, J.), dated December 31, 2010,which, after a hearing, granted the father's petition to modify an order of the same court datedFebruary 23, 2009, so as to award him sole legal and residential custody of the parties' child, and(2) an order of the same court (Cheng, J.), dated March 18, 2011, which denied her motionpursuant to CPLR 4404 (b) to set aside the order dated December 31, 2010.
Ordered that the orders dated December 31, 2010 and March 18, 2011 are affirmed, with onebill of costs.
The Family Court properly denied the mother's motion to preclude the introduction intoevidence of the report and testimony of a forensic evaluator, or, alternatively, for a negativeinference to be drawn concerning the evaluator's credibility, based upon the evaluator'sdestruction of certain audiotapes of interviews she conducted in the course of her evaluation. Therecord does not support the mother's contention that the missing audiotapes denied her the abilityto effectively cross-examine the forensic evaluator (see generally Kesseler v Kesseler, 10NY2d 445 [1962]).
" 'Modification of an existing custody arrangement is permissible only upon a showing thatthere has been a change in circumstances such that a modification is necessary to ensure thecontinued best interests and welfare of the child' " (Matter of Buxenbaum v Fulmer, 82 AD3d 1223, 1223 [2011],quoting Matter of Pignataro vDavis, 8 AD3d 487, 488 [2004]). The best interests of the child here must be determinedby a review of the totality of the circumstances (see Matter of Skeete v Hamilton, 78 AD3d 1187 [2010]). "Sinceany custody determination depends to a great extent [*2]upon thehearing court's assessment of the credibility of the witnesses and of the character, temperament,and sincerity of the parties, its findings are generally accorded great deference and will not bedisturbed unless they lack a sound and substantial basis in the record" (id. at 1188; Matter of Nell v Nell, 87 AD3d541, 542 [2011] [internal quotation marks omitted]).
The parties had entered into a stipulation, pursuant to which they had joint custody of theirdaughter, with the mother having residential custody in California, and the father havingvisitation in New York for extended periods of time during school breaks and the summer, andthe right to exercise weekend visitation in California two weekends each month. The relationshipbetween the parties was strained when they entered into the stipulation, and subsequentlydeteriorated to the point that they could not communicate and cooperate with one anotherconcerning the child; therefore, joint custody was no longer feasible. That factor, together withthe Family Court's finding that the mother's animosity towards the father and her attempts toundermine the child's relationship with him were harmful to the child, constituted a sufficientchange in circumstances to warrant a determination of whether a change in custody would be inthe child's best interest (see Matter ofPappas v Kells, 77 AD3d 952 [2010]; Matter of Nikki O. v William N., 64 AD3d 938 [2009]; Matter of Zeis v Slater, 57 AD3d793 [2008]).
There is a sound and substantial basis for the Family Court's determination that it was in thechild's best interest to transfer sole custody to the father in New York, based upon the findingsthat the mother was attempting to thwart the child's relationship with her father, and that thefather would be more likely than the mother to foster a meaningful relationship between the childand the noncustodial parent (see Matterof Mingo v Belgrave, 69 AD3d 859 [2010]; Matter of Tori v Tori, 67 AD3d 1021 [2009]; Matter of Adams v Perryman, 35 AD3d852 [2006]; Matter of Shockome vShockome, 30 AD3d 528 [2006]; Matter of Fallon v Fallon, 4 AD3d 426 [2004]).
The mother's remaining contentions are without merit. Angiolillo, J.P., Florio, Chambers andHall, JJ., concur.
Motion by the child, on appeals from two orders of the Family Court, Suffolk County, datedDecember 31, 2010, and March 18, 2011, respectively, inter alia, to strike portions of theappendix and the appellant's brief and reply brief on the ground that they contain or refer tomatter dehors the record. By decision and order on motion of this Court dated November 3, 2011,those branches of the motion which were to strike pages A.3047 through A.3086 of theappellant's appendix, Section G of the statement of facts in the appellant's brief on pages 26 and27, and Point III of the appellant's reply brief on pages 25 and 26, were held in abeyance andreferred to the panel of Justices hearing the appeals for determination upon the argument orsubmission thereof.
Upon the papers filed in support of the motion and the papers filed in opposition thereto, andupon the argument of the appeals, it is,
Ordered that those branches of the motion which were to strike pages A.3047 [*3]through A.3086 of the appellant's appendix, Section G of thestatement of facts in the appellant's brief on pages 26 and 27, and Point III of the appellant's replybrief on pages 25 and 26 are denied. Angiolillo, J.P., Florio, Chambers and Hall, JJ., concur.