| Matter of Bush v Bush |
| 2013 NY Slip Op 02116 [104 AD3d 1069] |
| March 28, 2013 |
| Appellate Division, Third Department |
| In the Matter of Kimberly Bush, Appellant, v Teddy BushIII, Respondent. (Proceeding No. 3.) (And Two Other Related Proceedings.) In theMatter of Adelbert Samuel Bush II, Respondent, v Kimberly Bush, Appellant.(Proceeding No. 4.) (And Another Related Proceeding.) |
—[*1] Diane V. Bruns, Ithaca, for Adelbert Samuel Bush II, respondent. Steven J. Getman, Ovid, attorney for the children. [*2]Margaret McCarthy, Ithaca, attorney for thechild.
Garry, J. Appeals (1) from an order of the Family Court of Cortland County(Campbell, J.), entered April 8, 2011, which, among other things, granted respondent'sapplication, in proceeding No. 3 pursuant to Family Ct Act article 6, to modify a priororder of custody, and (2) from an order of said court, entered April 8, 2011, which,among other things, granted petitioner's application, in proceeding No. 4 pursuant toFamily Ct Act article 6, for custody of the parties' child.
Kimberly Bush (hereinafter the mother) has three children (born in 1997, 2000 and2003). Respondent Teddy Bush III is the father of the two older children, and petitionerAdelbert Samuel Bush II is the father of the youngest child. In April 2003, Family Court(DiStefano, J.) issued an order granting joint custody of the two older children to theirfather and the mother, with physical placement to the mother in Tennessee. In October2010, the mother initiated proceedings seeking to hold the father of the older children inviolation of the April 2003 order, and seeking modification of that order. The father ofthe older children cross-petitioned for modification. In November 2010, the father of theyoungest child commenced proceedings seeking custody of his child, and the mothercross-petitioned for the same relief. Following a fact-finding hearing and aLincoln hearing with the older children, Family Court (Campbell, J.) dismissedthe mother's petitions, granted the fathers' petitions and awarded sole custody of the olderchildren to their father and sole custody of the youngest child to her father. The motherappeals.
Initially, the attorneys for the children contend that this Court should declinejurisdiction on the ground that all of the children now reside in Tennessee with theirrespective fathers pursuant to Family Court's orders, while the mother—a NewYork resident when these proceedings were commenced—allegedly no longerresides in this state. However, the claim that the mother has left New York is made solelyin the briefs, is not included in the record and is thus beyond our consideration (see Birr v Birr, 70 AD3d1221, 1223 [2010]). Family Court determined at the first appearance that it hadjurisdiction over these proceedings under the Uniform Child Custody Jurisdiction andEnforcement Act (see Domestic Relations art 5-A), and thereafter retainsexclusive continuing jurisdiction until a court determines otherwise (seeDomestic Relations Law § 76-a [1]; Matter of Hissam v Mancini, 80 AD3d 802, 803 [2011],lv dismissed and denied 16 NY3d 870 [2011]).
We will not disturb Family Court's award of sole custody of the two older children totheir father. The requisite change in circumstances was established by, among otherthings, the mother's acknowledged drug abuse in Tennessee, her unilateral relocation in2009 with the [*3]children to New York—whichsubstantially increased the travel required for visitation—and her subsequent arrestand incarceration (see Matter ofNephew v Nephew, 45 AD3d 1194, 1195 [2007]; Matter of Robertson vRobertson, 40 AD3d 1219, 1220 [2007]; Matter of Gregio v Rifenburg, 3 AD3d 830, 831-832[2004]). In determining what custodial arrangement would serve the children's bestinterests, the court was required to evaluate such relevant factors as "the relative fitness,stability, past performance, and home environment of the parents, as well as their abilityto guide and nurture the children and foster a relationship with the other parent" (Matter of Arieda vArieda-Walek, 74 AD3d 1432, 1433 [2010] [internal quotation marks andcitation omitted]; see Matter ofWilson v Hendrickson, 88 AD3d 1092, 1094 [2011]). The court noted that thefather of the older children owns his residence in Tennessee, that he and his live-inparamour have steady jobs, and that neither has a criminal record or any history of childprotective involvement. Further, the older children have lived in Tennessee for most oftheir lives, have positive relationships there with the paramour, their paternalgrandmother and others, and are doing well socially and academically in their Tennesseeschool.
By contrast, the mother is unemployed, and her lifestyle is so unstable that the olderchildren attended three different school districts in six months while residing with her inNew York. Family Court found that the mother has interfered with the older children'srelationship with their father by, among other things, twice unilaterally relocating toanother state. A caseworker testified that a child protective report was indicated againstthe mother and her fiancÉ for inadequate guardianship of the children, and therewas testimony that the mother and her fiancÉ bought and sold drugs while thechildren resided with them in Tennessee and that the children were repeatedly exposed todrug abuse and domestic violence. The mother and her fiancÉ acknowledged thatthey both have criminal records, formerly used illegal drugs, and left Tennessee whileopen criminal matters were pending there against each of them. As a consequence of oneof these unresolved matters, the mother was arrested by bounty hunters in front of thechildren.
The mother claimed that she no longer uses illegal drugs, that no domestic violencehad occurred, and—contrary to the father's testimony—that she told himabout her 2009 move to New York and facilitated contact between him and his childrenthereafter. However, according deference to Family Court's credibility assessments, wefind a sound and substantial basis in the record for its determinations that joint custody isno longer feasible, and that the older children's best interests are served by granting solecustody to their father (seeMatter of Michael GG. v Melissa HH., 97 AD3d 993, 995 [2012]; Matter of Coley v Sylva, 95AD3d 1461, 1462-1463 [2012]; Matter of Keefe v Adam, 85 AD3d 1225, 1226-1227[2011]).
As Family Court noted, the custody determination as to the youngest child is moredifficult because of her father's status as a convicted sex offender and the lack of awell-established parental relationship. Before the youngest child's birth, her fatherpleaded guilty to a charge of statutory rape arising out of a 2001 incident. He has no prioror subsequent history of crimes or sexual misconduct. He did not complete sex offendertreatment following this conviction, but testified that he was willing to obtain suchtreatment if Family Court so directed. [*4]Family Courtfound that the lack of contact between the youngest child and her father resulted, in part,from the mother's elimination of their visits shortly after his release from jail. Notably,the mother did this based upon her fiancÉ's objections, not due to any concernabout the father's past. The father of the youngest child testified that the mother does notcommunicate with him and that, following her termination of his visits, he maintainedcontact by means of occasional visits at a relative's home without the mother'sknowledge. However, he and his wife testified that the youngest child's relationship withthem recently improved after they cared for her during the mother's 2010 incarceration.Factors favoring the father of the youngest child include his stable lifestyle, his steadyjob with the same farm employer for most of the past 10 years and his regular payment ofchild support. He and his wife—who holds a full-time job, was honorablydischarged from the military and has no criminal record—own a three-bedroomhome; the wife testified that the father was honest with her about the nature of hiscriminal conviction and that she does not believe he poses any threat to the youngestchild.
The mother denies that she thwarted contact between the youngest child and herfather, contending that he chose not to have contact with the child after his marriage, andshe points out that the youngest child has lived with her for most of her life. In this initialcustody determination, this informal arrangement by the parties is merely onefactor—the governing standard is the child's best interests (see Matter of Roberta GG. v LeonHH., 99 AD3d 1057, 1058 [2012]). There was favorable testimony from ateacher that, while residing with the mother, the youngest child attended school regularlyand was usually clean and well-rested. There was also testimony, however, that theyoungest child fears the mother's fiancÉ because he "hurt her mommy," that shehas demonstrated to relatives how the mother and fiancÉ would roll up a dollar billand use it to snort white powder into their noses, and that she said that the mother andfiancÉ told her not to tell caseworkers about their drug abuse.
As to the mother's claim that the youngest child has a strong bond with her oldersiblings and should not be separated from them, the general rule that "siblings should bekept together if possible . . . has become more complicated due to changingfamily dynamics" (Matter ofTavernia v Bouvia, 12 AD3d 960, 962 [2004]; accord Matter of Williams vWilliams, 66 AD3d 1149, 1152 [2009]). Here, the youngest child's fathertestified that he supports her relationship with her older siblings. As both fathers reside inTennessee, that relationship may be better facilitated by placement of the youngest childwith her father than with the mother. As Family Court noted, neither the mother nor thefather of the youngest child is an ideal parent; both have shortcomings and havesometimes demonstrated poor judgment. Nonetheless, considering the record as a whole,we find no reason to disturb Family Court's decision awarding sole custody to theyoungest child's father (seeMatter of Danielle TT. v Michael UU., 90 AD3d 1103, 1104 [2011]; Matter of Baker v Baker, 82AD3d 1462, 1462-1463 [2011]; Matter of Maheu v Bowen, 26 AD3d 654, 655 [2006]).
Mercure, J.P., Spain and McCarthy, JJ., concur. Ordered that the orders are affirmed,without costs.