| Matter of Youngs v Olsen |
| 2013 NY Slip Op 03144 [106 AD3d 1161] |
| May 2, 2013 |
| Appellate Division, Third Department |
| In the Matter of Robert Youngs, Appellant, v BarbaraOlsen, Respondent. (And Four Other Related Proceedings.) |
—[*1] Jane M. Bloom, Monticello, for respondent. Alexandra Bourne, Rock Hill, attorney for the child.
Spain, J. Appeal from an order of the Family Court of Sullivan County (McGuire, J.),entered May 11, 2012, which, among other things, granted respondent's application, infive proceedings pursuant to Family Ct Act article 6, for modification of a prior order ofcustody.
The parties, who never married or lived together, are the parents of a daughter, bornin 2009. A 2010 joint custody order of Family Court, made on consent, provided for,among other things, physical custody with respondent (hereinafter the mother) and finaldecision making authority to the mother on health and education matters when the partiesare unable to agree. Petitioner (hereinafter the father) was provided with weeklyovernight parenting time from Thursday morning to Friday evening, certain holiday visitsand additional time as the parties could agree. The order also directed the father to followthe reasonable parenting instructions provided to him by the mother.
In September 2011, the father commenced the first of these proceedings, alleging,among other things, that the mother violated the original custody order by misleading adoctor regarding the child's health, which caused the father to be denied a scheduledperiod of parenting [*2]time. The mother thencommenced a proceeding seeking to modify the order to provide her with sole custody,alleging that the child did not receive proper care while with the father. The fathercommenced a proceeding seeking increased parenting time on certain holidays andspecial days, an order directing that the parties cease all verbal communication and thatthe mother and her household refrain from mentioning the father or his family/householdin the presence of the child. Thereafter, the mother commenced a proceeding allegingthat the father violated the original custody order by, among other things, failing tofollow the parenting instructions that she provided to him and by encouraging the childto call the father's fiancÉe "mommie." Finally, the father commenced anotherviolation proceeding seeking increased weekly parenting time and time at Easter 2012.
During the pendency of these proceedings, Family Court issued five temporaryorders regarding many issues covering matters on which the parties could not agree,including, among others, parenting time and bedtime and medication schedules for thechild. After a full hearing and in a well-reasoned written decision, the court awarded themother sole custody of the child, dismissed the parties' violation petitions and partiallygranted the father's modification petition by increasing his parenting time. The fathernow appeals.
The father's contentions on appeal are limited to his arguments that Family Courterred in finding that there was a significant change in circumstances so as to warrant achange in the original order, and that Family Court's decision demonstrates an unfair biasagainst him.[FN*]Initially, "[w]here a voluntary agreement of joint custody is entered into, it will not be setaside unless there is a sufficient change in circumstances since the time of the stipulationand unless the modification of the custody agreement is in the best interests of the[child]" (Matter of Gaudette v Gaudette, 262 AD2d 804, 805 [1999], lvdenied 94 NY2d 790 [1999] [citation omitted]), and "an order entered on consent,without a plenary hearing, is entitled to less weight" (Matter of Whitcomb v Seward, 86 AD3d 741, 742 [2011])."[A] sufficient change [in] circumstances can be established where . . . therelationship between joint custodial parents deteriorates 'to the point where they simplycannot work together in a cooperative fashion for the good of their children' " (Ulmerv Ulmer, 254 AD2d 541, 542 [1998], quoting Matter of Jemmott v Jemmott,249 AD2d 838, 839 [1998], lv denied 92 NY2d 809 [1998]; accord Matter ofHarper v Jones, 292 AD2d 649, 650 [2002]). Notably, this Court accords greatdeference to Family Court's opportunity to assess the credibility of witnesses, and we willnot disturb its determination unless it lacks a sound and substantial basis in the record (see Matter of Coley v Sylva,95 AD3d 1461, 1462 [2012]; Matter of Backus v Clupper, 79 AD3d 1179, 1181 [2010],lv denied 16 NY3d 704 [2011]).
Upon a thorough review of the record before us and deferring to Family Court'scredibility determinations, there is a sound and substantial basis in the record to supportthe conclusion that the continued deterioration of the parties' relationship, the failure ofthe parties to agree on nearly every aspect of the child's life and the parties' practice ofdisregarding the child's best interests in order to further their personal antagonismconstitute a sufficient change in circumstances so as to warrant the modification (see Matter of Carella v Ferrara,9 AD3d 605, 606 [2004]; Matter of Smith v Miller, 4 AD3d 697, 698 [2004];Matter of Rosario WW. v Ellen [*3]WW., 309AD2d 984, 985-986 [2003]; Matter of Harper v Jones, 292 AD2d at 650;Matter of Gaudette v Gaudette, 262 AD2d at 805).
Finally, the record fails, in any respect, to support the father's contention that FamilyCourt was in some way biased against him.
Peters, P.J., Stein and Garry, JJ., concur. Ordered that the order is affirmed, withoutcosts.
Footnote *: The father does notchallenge Family Court's conclusion that it is in the best interests of the child for themother to have sole custody.