| Matter of James R.O. v Cond-Arnold |
| 2012 NY Slip Op 06809 [99 AD3d 801] |
| October 10, 2012 |
| Appellate Division, Second Department |
| In the Matter of James R.O., Appellant, v LuanajoCond-Arnold, Respondent. Andrew O., Nonparty Appellant. |
—[*1] Maria J. Frank, Yorktown Heights, N.Y., attorney for the child, the nonparty appellantAndrew O. (Anonymous). Anthony G. Maccarini, Carmel, N.Y., for respondent.
In two related child custody proceedings pursuant to Family Court Act article 6, the fatherappeals, and the child, Andrew O., separately appeals, from (1) an order of the Family Court,Putnam County (Rooney, J.), dated April 22, 2011, which granted the mother's application, madeat the close of the father's case, to dismiss the father's petition to modify an order of the samecourt dated March 15, 2010, awarding the parties joint custody of the subject child withresidential custody to the mother and visitation to the father, so as to award residential custody ofthe child to the father, and dismissed the petition, and (2) an order of the same court, also datedApril 22, 2011, which, at the close of the father's case, sua sponte dismissed the father's petitionalleging that the mother had violated certain provisions of the order dated March 15, 2010.
Ordered that the orders are reversed, on the law, without costs or disbursements, the mother'sapplication is denied, the petitions are reinstated, and the matters are remitted to the FamilyCourt, Putnam County, for further proceedings consistent herewith.
To modify an existing custody arrangement, there must be a showing of a change incircumstances such that modification is required to ensure the best interests of the child (see Matter of Aronowich-Culhane vFournier, 94 AD3d 1114 [2012]; Matter of Sparacio v Fitzgerald, 73 AD3d 790 [2010]; Matter of Russell v Russell, 72 AD3d973 [2010]; Trinagel v Boyar,70 AD3d 816 [2010]). The best interests of the child are determined by a review of thetotality of the circumstances (see Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Matter of Wakefield v Wakefield, 74AD3d 1213 [2010]; Matter of Rossv Ross, 68 AD3d 878 [2009]). In deciding a motion to dismiss for failure to establish aprima facie case, the court must accept the petitioner's evidence as true and afford the petitionerthe benefit of every favorable inference that can reasonably be drawn therefrom (see Matter of Ramroop v Ramsagar, 74AD3d 1208 [2010]; Matter ofDavid WW. v Laureen QQ., 42 AD3d 685 [2007]; Matter of Kerwin v Kerwin, 39 AD3d 950 [2007]).[*2]
Here, accepting the father's evidence as true and affordinghim the benefit of every favorable inference, the father presented sufficient prima facie evidenceof a change of circumstances which might warrant modification of custody in the best interests ofthe child (see Matter of Ramroop vRamsagar, 74 AD3d 1208 [2010]). The Family Court therefore erred in granting themother's application, made at the close of the father's case, to dismiss the father's petition formodification (see Matter of Ruiz vTravis, 84 AD3d 1242 [2011]; Matter of David WW. v Laureen QQ., 42 AD3d 685 [2007]). TheFamily Court also erred in dismissing, at the close of the father's case, the father's petitionalleging that the mother had violated the court's prior order of custody and visitation, where theevidence sufficiently established, prima facie, that the mother had violated a condition of theprior order which prohibited the child from being in the presence of a certain individual.Moreover, the Family Court erred in dismissing the father's petitions without providing theattorney for the child a reasonable opportunity to present evidence (cf. Matter of Krieger v Krieger, 65AD3d 1350 [2009]).
While forensic evaluations may not be needed in all custody determinations (see Matter of Gonzalez v Gonzalez, 15AD3d 481 [2005]; Stern v Stern, 225 AD2d 540 [1996]), under the circumstancespresented, and in light of allegations concerning the mother's parental fitness and mental health,the Family Court should have ordered forensic evaluations in this case.
The parties' remaining contentions are without merit. Skelos, J.P., Balkin, Leventhal andCohen, JJ., concur.