| Matter of Smith v Barney |
| 2012 NY Slip Op 09110 [101 AD3d 1499] |
| December 27, 2012 |
| Appellate Division, Third Department |
| In the Matter of Bradley K. Smith, Respondent, v Elizabeth J.Barney, Appellant. (And Another Related Proceeding.) |
—[*1] Holly L. Mosher, Watkins Glen, for respondent. Steven J. Getman, Ovid, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Schuyler County (Argetsinger, J.),entered August 25, 2011, which, among other things, granted petitioner's application, in aproceeding 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 February 2008). The unmarried parties lived together briefly with the father'sparents until March 2008, when the mother moved out. Pursuant to a stipulated order entered inApril 2008, they agreed to share joint legal custody of the child, with the mother to have primaryphysical custody and the father to have parenting time every weekend and as otherwise agreed toby the parties.
In September 2010, the father commenced a proceeding seeking modification of the priororder of custody and the mother filed a cross petition alleging that the father violated the terms ofthe prior order regarding visitation. Following a fact-finding hearing, Family Court granted thefather's modification petition and awarded primary physical custody of the child to the father andparenting time to the mother, while otherwise maintaining joint legal custody [*2]between the parties, and also dismissed the mother's cross petition.The mother now appeals.
We affirm. In order to modify a prior custody order, the party seeking to do so mustdemonstrate that there has been a substantial change in circumstances since the prior order suchthat modification is in the child's best interests (see Matter of Clarkson v Clarkson, 98 AD3d 1208, 1209 [2012];Matter of Michael GG. v MelissaHH., 97 AD3d 993, 994 [2012]). Here, evidence was presented at the hearing that themother and child moved out of the father's family home when the child was four weeks old, thefather had weekend and other visitation during the child's first year and, by the time the child wasabout one year to 15 months old (during 2009), she increasingly lived with the father and hisfamily for lengthy periods of time, with periodic visits with her mother. As the child got older,the father—who remained living with his parents—and his family became the child'sprimary caretakers. The mother, who lived with her boyfriend, a college student, acquiesced inthis arrangement and often permitted the father and his family to take the child beyond theregular visitation provided for in the custody order. During this time, the mother changedresidences numerous times, resulting in the child being moved from place to place creatinginstability and visitation-related transportation problems.
After the father commenced this proceeding in September 2010 (the child was 2½),however, the mother often refused to let the child visit her father except weekends, as provided intheir stipulated order. Up until the time of the mid-2011 trial, the child, age 3, increasinglyexhibited negative and troubling behaviors, sometimes after spending time with the mother,including using inappropriate language, increased crying and insecurity, making sexual gestures,refusing to obey directives, engaging in violent play with her dolls and regressing in her toilettraining. In view of the foregoing, it is clear that circumstances changed significantly since theentry of the prior custody order warranting Family Court's consideration of whether a change ofprimary physical custody was in the child's best interests.
"Determining whether a modification of a custody order is in the child[ ]'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[ ]'s intellectual and emotional development' " (Matter of Coley v Sylva, 95 AD3d1461, 1462 [2012], quoting Matterof Calandresa v Calandresa, 62 AD3d 1055, 1056 [2009]; see Matter of Knight v Knight, 92AD3d 1090, 1091-1092 [2012]). Here, considerable evidence was presented at the hearingregarding the fitness, stability and home environments of each of these young parents and therecord reflects that both of them sincerely love their child. On the one hand, the father, age 23 atthe time of trial, was gainfully employed, actively engaged in the day-to-day care of the child,provided her with clothing, diapers and other necessities, took responsibility for having hertransported to visitation with the mother as well as medical appointments, had a willing and ablefamily support network available to continue to help him and the mother care for and transportthe child, made efforts to address the child's behavioral problems and had plans for the child'seducational future. The mother, age 20, on the other hand, changed residences frequently,experienced financial difficulties attributable to both her and her boyfriend's lack of steadyemployment, did not have as reliable a family support network available to care for the child asdid the father, and was unaware of some of the child's behavioral issues and failed or refused toaddress others. In addition, she continued to rely on the father for help with expenses in additionto child support, did not have her own means of transportation and was pregnant without a viableplan to provide for her expanding family.
Inasmuch as the father was in a better position to provide a stable home life and [*3]promising future for the child, as the child's attorney alsoadvocated, Family Court reasonably concluded that it was in the child's best interests to awardphysical custody to him. In view of this, as well as the deference to be accorded Family Court'scredibility determinations (see Matter ofAnthony MM. v Jacquelyn NN., 91 AD3d 1036, 1038 [2012]) and the decreased weightthat is generally given to a stipulated order of custody as compared to one resulting from ajudicial determination made after a hearing (see Matter of Klee v Schill, 95 AD3d 1599, 1600 n 3 [2012]), wefind that Family Court properly granted the father's modification petition. Upon reviewing theproof in the record, we further find no error in Family Court's denial of the mother's crosspetition.
Peters, P.J., Kavanagh, McCarthy and Egan Jr., JJ., concur. Ordered that the order isaffirmed, without costs.