| Matter of Melody M. v Robert M. |
| 2013 NY Slip Op 00959 [103 AD3d 932] |
| February 14, 2013 |
| Appellate Division, Third Department |
| In the Matter of Melody M., Appellant, v Robert M.,Respondent. (And Three Other Related Proceedings.) |
—[*1] Poissant, Nichols & Grue, Malone (Luke J. Babbie of counsel), for respondent. Verner M. Ingram Jr., Potsdam, attorney for the children.
Rose, J.P. Appeal from an order of the Family Court of St. Lawrence County (Potter,J.), entered September 8, 2011, which, among other things, partially granted respondent'sapplication, in four proceedings pursuant to Family Ct Act article 6, to modify a priororder of custody.
The parties entered into a separation agreement in 2006 providing for joint custodyof their three children (born in 2000, 2003 and 2004) with alternating physicalplacement. In February 2009, they stipulated to, among other things, continue jointcustody, with respondent (hereinafter the father) having primary physical custody andpetitioner (hereinafter the mother) having scheduled parenting time for an evening eachweek and on weekends during the school year. In July 2010, the mother commenced thefirst of these proceedings seeking to alter her parenting time so that she would have thetwo youngest children from Wednesday to Sunday of each week and the oldest childfrom Sunday to Tuesday of each week. The father opposed the proposed schedulechange, filed violation petitions and filed a modification petition seeking, among otherthings, sole legal custody of the children.
After a hearing, Family Court found a sufficient change in circumstances to supportthe conclusion that the joint custody arrangement was no longer viable and that an awardof sole [*2]legal custody to the father would be in thebest interests of the children. The court denied the mother's requested change inparenting time because it would effectively separate the two younger children from theirolder sibling. Finally, the court imposed an order of protection against the mother thatprohibited her from, among other things, posting any communications to or about thechildren on any social network site. The mother appeals and we now affirm.
Initially, the mother does not dispute that there was a change in circumstances, andthe record supports Family Court's determination that there was a sufficient deteriorationin the parties' relationship so as to warrant modification of the joint custody order (see Matter of Martin v Martin,45 AD3d 1244, 1245-1246 [2007]; Matter of Kilmartin v Kilmartin, 44 AD3d 1099, 1101[2007]; Grandin v Grandin,8 AD3d 710, 711 [2004]). Having determined that joint custody was no longerworkable, Family Court was "then required to determine what custodial arrangementwould promote the best interests of the child[ren]" (Matter of Williams v Williams, 66 AD3d 1149, 1151[2009]; see Matter of Goldsmithv Goldsmith, 50 AD3d 1190, 1191 [2008]). Relevant factors in determining thechildren's best interests include " 'maintaining stability in the children's lives, the qualityof respective home environments, the length of time the present custody arrangement hasbeen in place, each parent's past performance, relative fitness and ability to provide forand guide the children's intellectual and emotional development, and the effect the awardof custody to one parent would have on the children's relationship with the other parent' "(Matter of Timothy N. vGwendolyn N., 92 AD3d 1155, 1157 [2012], quoting Matter of Opalka v Skinner, 81AD3d 1005, 1006 [2011]; see Matter of Coley v Sylva, 95 AD3d 1461, 1462 [2012]).
In making its determination, Family Court noted the pattern of inappropriatebehavior by the mother and its effect on the parties' oldest child, who has mental healthissues and receives counseling. The mother does not participate in the child's counselingbecause she does not like the therapist or agree with the recommendation that the childneeds structure and should follow the same routine in both households. The mother alsotestified that she frequently calls the father for him to take the oldest child away duringher parenting time because she cannot deal with his behavior. The mother admitted thatshe swears and yells at the oldest child, often resorting to physical means to deal withhim. In addition, she utilized Facebook to insult and demean the child, who was then 10years old, by, among other things, calling him an "asshole." She testified without remorsethat she did so because that is what "[h]e is," and she thought it was important for herFacebook friends to know this. Charitably stated, her testimony reflected a lack of insightas to the nature of her conduct toward her oldest child.
In contrast, the father deals more appropriately with the oldest child, participates incounseling with him and ensures that he takes his medication. Also, the oldest child'sbehavior and academic achievement have improved since the change in physical custodyas a result of the February 2009 stipulation. The evidence also revealed that the father issteadily employed, maintains a stable environment for the children with his current wifeand their child, and his parenting time does not involve the same type of verbal andphysical altercations with the oldest child as often occurred while the children were in themother's care.
As the evidence indicates that the father is more able to provide a stable andnurturing environment for the children, Family Court's determination that the bestinterests of the children would be served by granting the father sole custody is supportedby a sound and substantial basis in the record (see Matter of Timothy N. vGwendolyn N., 92 AD3d at 1157; Matter of Goldsmith v Goldsmith, 50AD3d at 1193; Matter of Harper v Jones, 292 AD2d 649, 650-651 [2002]). [*3]Furthermore, Family Court did not err in rejecting themother's requested modification of her parenting time as she did not present any evidencethat it would be in the children's best interests to be separated (see Matter of Ebert vEbert, 38 NY2d 700, 704 [1976]; Matter of Valenti v Valenti, 57 AD3d 1131, 1135 [2008],lv denied 12 NY3d 703 [2009]; cf. Matter of Donahue v Buisch, 265AD2d 601, 604 [1999]).
Nor can we agree with the mother's claim that Family Court was without authority toissue an order of protection in the absence of a specific request for one (seeFamily Ct Act § 656; Matter of Bronson v Bronson, 23 AD3d 932, 933 [2005];Matter of Morse v Brown, 298 AD2d 656, 657 [2002]; Matter of Mongiardov Mongiardo, 232 AD2d 741, 744 [1996]). The mother's use of physical force anddisparagement of the oldest child on Facebook were subjects of one of the father'sviolation petitions, and there was sufficient evidence regarding the mother'sinappropriate use of the Internet to demean and disparage the oldest child, as well as herlack of remorse or insight into the inappropriateness of such behavior, so as to justify thecourt's issuance of the order of protection.
Finally, the mother's claims that Family Court should have held a Lincolnhearing and the attorney for the children was ineffective have been reviewed anddetermined to be without merit.
Spain, Stein and McCarthy, JJ., concur. Ordered that the order is affirmed, withoutcosts.