| Matter of Casarotti v Casarotti |
| 2013 NY Slip Op 04860 [107 AD3d 1336] |
| June 27, 2013 |
| Appellate Division, Third Department |
| In the Matter of Sean A. Casarotti, Respondent, v Mary W.Casarotti, Appellant. |
—[*1] Neal P. Rose, Oneida, for respondent. Walter J. Burkard, Fayetteville, Attorney for the Children.
Spain, J. Appeal from an order of the Family Court of Madison County (DiStefano,J.), entered August 23, 2012, which granted petitioner's application, in a proceedingpursuant to Family Ct Act article 6, to modify a prior order of custody.
Petitioner (hereinafter the father) and respondent (hereinafter the mother) are thedivorced parents of two daughters (born in 1992 and 1998) and a son (born in 1994). Theyoungest daughter (hereinafter the child) is the subject of this proceeding. The familylived together in northern California until the parties' separation in 2000, at which timethe mother moved with the children to New York. The parties later consented to jointcustody of the children and a stipulation to that effect was incorporated but not mergedinto their 2007 judgment of divorce. In accordance with the stipulation, the mothermaintained primary physical custody of the children in New York and the father, whoremained in California, was granted liberal parenting time during weekends, winterholidays and summer vacations. In July 2012, the father commenced this custodymodification proceeding, seeking primary physical custody of the child, alleging that thetwo older children had moved out of the mother's house and that the mother wasemotionally abusive to the child, who had expressed her wish to live with him. Followingan August 2012 hearing at which the parties, the 14-year-old child and her 20-year-oldsister testified, Family Court granted the father's petition and awarded him primaryphysical custody, [*2]while otherwise maintaining jointcustody, and granted the mother liberal parenting time.[FN1]The mother now appeals.
To modify an existing custody order, "the party seeking the modification [must]demonstrate[ ] a sufficient change in circumstances since entry of the prior order towarrant modification thereof in the child's best interest" (Matter of Hamilton vAnderson, 99 AD3d 1077, 1078 [2012] [internal quotation marks and citationomitted]; see Matter of Smith vBarney, 101 AD3d 1499, 1500 [2012]; Matter of Michael GG. v Melissa HH., 97 AD3d 993, 994[2012]). Notably, where the prior order was entered on the parties' consent, it is entitledto less weight (see Matter ofYoungs v Olsen, 106 AD3d 1161, 1163 [2013]; Matter of Rosi v Moon, 84AD3d 1445, 1446 [2011]). Moreover, "while not dispositive, the express wishes ofolder and more mature children can support the finding of a change in circumstances"(Matter of Burch v Willard,57 AD3d 1272, 1273 [2008]; accord Matter of Dorsa v Dorsa, 90 AD3d 1046, 1047[2011]; see Matter of Oddy v Oddy, 296 AD2d 616, 617 [2002]). AlthoughFamily Court did not expressly address whether the father demonstrated a sufficientchange in circumstances to warrant modification, "this Court has the authority toindependently review the record" (Matter of Prefario v Gladhill, 90 AD3d 1351, 1352 [2011];see Matter of Bedard vBaker, 40 AD3d 1164, 1165 [2007]).
Testimony at the hearing established that the relationship between the mother and thechild had, to an extent, deteriorated and had become strained as the child matured,resulting in escalating verbal confrontations approximately once a week that sometimesinvolved the mother directing profanity and vulgarities at the child. The child testifiedthat, on at least one recent occasion, the mother told her to move out of the house and,when the child left the house, the mother locked the door behind her. The child spent theevening on the front porch, called her sister and father because she did not know whereto go and attempted unsuccessfully to find somewhere to pass the night. Later that night,the mother allowed her back into the house. The sister and mother testified that themother similarly kicked the two older children out of the house several times, whichresulted in the sister moving out and the brother spending significant time periods at thehome of a family friend.
The record also indicates that the mother made no effort to foster a meaningfulrelationship between the father and the child and that she even, at times, impeded theircommunication. Particularly troubling is the testimony from the father, the sister and thechild that the mother threatened the children with negative consequences should theytestify in support of the father's requested custody modification. The sister testified thather mother threatened to cut off her financial aid for college and that she was worriedthat she would be denied access to her half brother, the mother's child from a subsequentrelationship who also lived in the mother's home. The child testified that her mother toldher that there would be consequences to testifying and "sort of" told her that theseconsequences would be "bad," but she was reluctant to elaborate on these threats infurther detail.
Although not an issue directly raised on appeal, the Attorney for the Child and thefather both requested that Family Court hold a Lincoln hearing (see Matter ofLincoln v Lincoln, 24 [*3]NY2d 270 [1969]) ratherthan require the child to testify in open court. Unfortunately, this request was denied and,after the mother refused to consent to the child testifying outside of the parties' presence,the child had to testify under oath in front of both parents. While we recognize thatFamily Court has the discretion to decide whether a Lincoln hearing isappropriate (see Matter of McGovern v McGovern, 58 AD3d 911, 913 n 2[2009]; Matter of Farnham v Farnham, 252 AD2d 675, 677 [1998]), it wasclearly an abuse of discretion for the court to put the child in this awkward position,notwithstanding that her wishes were already known to her parents, particularlyconsidering the testimony that the mother attempted to influence the testimony of herchildren. We again emphasize that " 'a child . . . should not be placed in theposition of having [his or her] relationship with either parent further jeopardized byhaving to publicly relate [his or her] difficulties with them' " when explaining the reasonsfor his or her preference (Matter of McGovern v McGovern, 58 AD3d at 913 n 2,quoting Matter of Lincoln v Lincoln, 24 NY2d at 272). Given the circumstancesof this case and the fact that—at her age—her preference would be entitledto great weight, the record indicates that a Lincoln hearing would have limitedthe risk of harm and "would have been far more informative and worthwhile than. . . an examination of the child under oath in open court" (Matter ofMcGovern v McGovern, 58 AD3d at 914 n 2 [internal quotation marks and citationomitted]; see Matter of Minnerv Minner, 56 AD3d 1198, 1199 [2008]; see also Matter of Justin CC. [Tina CC.], 77 AD3d 207,209-210 [2010]). In any event, although the child hesitated to fully articulate the mother'sthreats, the record demonstrates the mother's willingness to put her own interests beforethe child's interest in having healthy relationships with both of her parents.
Significantly, Family Court found that the child was "capable," "mature" andadamant in her desire to spend more time with her father. According deference to FamilyCourt's credibility determinations, we agree that the breakdown in communicationbetween the mother and the child, the mother's refusal to facilitate a relationship betweenthe father and the child, and the child's express desire to live with her father constituted asufficient change in circumstances to warrant modification of the prior custody order (see Matter of O'Connell vO'Connell, 105 AD3d 1367, 1367 [2013]; Matter of Dorsa v Dorsa, 90AD3d at 1047; Matter of Burch v Willard, 57 AD3d at 1273; Matter of Passero v Giordano,53 AD3d 802, 803-804 [2008]; Matter of Manfredo v Manfredo, 53 AD3d 498, 499[2008]).
Taking into account "the relative fitness, stability, past performance, and homeenvironment of the parents, as well as their ability to guide and nurture the children andfoster a relationship with the other parent" (Matter of Arieda v Arieda-Walek, 74 AD3d 1432, 1433[2010] [internal quotation marks and citation omitted]; see Matter of Melody M. v RobertM., 103 AD3d 932, 933 [2013]; Matter of Smith v Barney, 101 AD3d at1501), we are likewise persuaded that Family Court's award of primary physical custodyto the father was in the child's best interests (see Matter of Zwack v Kosier, 61 AD3d 1020, 1022[2009], lv denied 13 NY3d 702 [2009]; Matter of Burch v Willard, 57AD3d at 1273). The record demonstrates that both parties love the child. While themother had provided a fit home for many years, the father and the child convincinglytestified that the child's needs would be equally fulfilled in California. Significantly, thefather communicated more effectively with the child, enabling him to better foster heremotional and intellectual development. Moreover, "the evidence indicate[d] that thefather was more willing than the mother to allow the child to . . . maintain[a] relationship[ ] with the other parent" (Matter of Zwack v Kosier, 61 AD3d at1022). Although awarding the father physical custody of the child separates her from hersiblings, the record reveals that the two older children spend significant time away fromthe mother's home and the child was confident that she could remain close to her siblingsdespite her relocation. In that respect, we further find that the [*4]relocation was in the child's best interests (see id.;Matter of Messler v Messler, 218 AD2d 157, 158 [1996]),[FN2]particularly in light of Family Court's liberal award of visitation to the mother, in bothCalifornia and New York, on weekends, school breaks, winter holidays and summervacations. Finally, we discern no error in the court's division of the future travel expensesassociated with the mother's visitation, which requires the father to pay the full cost ofone round trip for the child to visit the mother each year, with the parties equally sharingthe cost of any additional trips.
Rose, J.P., McCarthy and Egan Jr., JJ., concur. Ordered that the order is affirmed,without costs.
Footnote 1: No stay was requestedand the child reportedly moved immediately to live with her father in California in lateAugust 2012.
Footnote 2: The mother waived anyargument that it was error for Family Court to bypass a relocation analysis by failing toadvance that argument in that court (see Matter of Clark v Ingraham, 88 AD3d 1079, 1079[2011]). However, because "the relocation issue is enmeshed with the best interestsanalysis," we have considered it among the other relevant factors in reviewing whetherthe custody modification was in the child's best interests (see Matter of Zwack vKosier, 61 AD3d at 1023).