| Matter of Fish v Fish |
| 2012 NY Slip Op 07234 [100 AD3d 1049] |
| November 1, 2012 |
| Appellate Division, Third Department |
| In the Matter of Charles Fish, Respondent, v Shelby S. Fish,Appellant. |
—[*1] Donald J. O'Connor, Binghamton, for respondent.
Spain, J. Appeal from an order of the Family Court of Broome County (Pines, J.), enteredMay 3, 2011, which, among other things, granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
The parties are the parents of two sons (born in 1998 and 2005) who, pursuant to a custodyorder, were in the physical custody of respondent (hereinafter the mother). Petitioner (hereinafterthe father) first sought a modification of the visitation provisions in that order and, after themother engaged in erratic and violent behavior, custody of the children. Family Court grantedtemporary custody to the father, with the mother entitled to supervised visitation. Following ahearing on the modification petitions, Family Court made that arrangement permanent, and themother now appeals.
Inasmuch as a sound and substantial basis in the record supports Family Court'sdetermination, we affirm. Initially, Family Court failed to expressly find in its decision thatcircumstances had changed enough to warrant revisiting the existing custody arrangement but,"upon our independent review authority, we find that the court's extensive factual findings arefully supported by the record and provide an ample basis for concluding that such a change incircumstances was proven here" (Matter of Troy SS. v Judy UU., 69 AD3d 1128, 1130[2010], lv dismissed and denied 14 NY3d 912 [2010]; see Matter of John P.R. v Tracy A.R.,13 AD3d 1125, 1125 [2004]). Specifically, police became involved in a public disputebetween the inebriated mother and her paramour in September 2010 and cited her for disorderlyconduct. The [*2]mother continued to drink and, when police anda caseworker returned two hours later to check on the welfare of the children, she was incoherent,refused to allow them into her residence and struck one of them, resulting in her being chargedwith harassment and detained for a mental health evaluation. The caseworker thereafter learnedthat the mother often drank heavily around the children and, in fact, had recently driven drunkwith them in her vehicle. The oldest son also reported that he had taken refuge with a neighborduring the mother's most recent drinking binge, and that she had tackled and injured him when hebriefly returned home.
According great deference to Family Court's assessment of credibility (see Matter of Coley v Sylva, 95 AD3d1461, 1462 [2012]), the foregoing evidence amply demonstrated a sufficient change incircumstances (see Matter of John P.R. v Tracy A.R., 13 AD3d at 1125; see also Matter of Martin v Mills, 94AD3d 1364, 1365-1366 [2012]; Matter of Opalka v Skinner, 81 AD3d 1005, 1005-1006 [2011]).When coupled with the lack of proof that the mother has adequately addressed her alcoholproblem, as well as the stable environment provided for the children by the father, that evidencefurther supported Family Court's determination that the best interests of the children lie in anorder of custody to the father and supervised visitation to the mother (see Matter of Troy SS.v Judy UU., 69 AD3d at 1130-1133; Matter of Kelley v VanDee, 61 AD3d 1281, 1283 [2009]).
Rose, J.P., Lahtinen, Kavanagh and McCarthy, JJ., concur. Ordered that the order isaffirmed, without costs.