| Matter of Conway v Gartmond |
| 2013 NY Slip Op 05313 [108 AD3d 667] |
| July 17, 2013 |
| Appellate Division, Second Department |
| In the Matter of Thomas Conway, Appellant, v JoyGartmond, Respondent. |
—[*1] Joseph R. Miano, Harrison, N.Y., for respondent. Rita M. Belk, Cortlandt Manor, N.Y., attorney for the child.
In related child custody and visitation proceedings pursuant to Family Court Actarticle 6, the father appeals, as limited by his brief, from so much of an order of theFamily Court, Westchester County (Morales-Horowitz, J.), entered June 22, 2012, as,after a hearing, denied that branch of his petition which was to modify a prior order ofthe same court (Spitz, J.H.O.) entered May 8, 2006, awarding sole physical custody ofthe parties' child to the mother with certain visitation to him, so as to award him solelegal and physical custody of the parties' child, and, in effect, granted that branch of hispetition which was, in effect, in the alternative, to modify the order entered May 8, 2006,so as to award him certain expanded visitation, only to the extent of directing that hehave visitation with the child on alternate weekends from Friday at 6:00 p.m. untilMonday at 6:00 p.m. and weekly overnight visitation from Wednesday at 6:00 p.m. untilThursday at 8:30 p.m.
Ordered that the order entered June 22, 2012, is modified, on the facts and in theexercise of discretion, by deleting the provision thereof granting that branch of thefather's petition which was, in effect, in the alternative, to modify the order entered May8, 2006, so as to award him certain expanded visitation, only to the extent of directingthat he have visitation with the child on alternate weekends from Friday at 6:00 p.m. untilMonday at 6:00 p.m. and weekly overnight visitation from Wednesday at 6:00 p.m. untilThursday at 8:30 p.m., and substituting therefor a provision granting that branch of thefather's petition and directing that he have visitation with the child on alternate weekendsfrom Friday at 6:00 p.m. until Monday at 6:00 p.m. and weekly overnight visitation fromWednesday at 6:00 p.m. until Friday at 6:00 p.m.; as so modified, the order is affirmedinsofar as appealed from, without costs or disbursements.
" 'In order to modify an existing custody arrangement, there must be a showing of asubsequent change of circumstances so that modification is required to protect the bestinterests of the child' " (Matterof Anwar v Sani, 78 AD3d 827, 827 [2010], quoting Matter of Fallarino v Ayala, 41AD3d 714, 714 [2007]; seeMatter of Rosen v Goldhaber, 73 AD3d 1184, 1185 [2010]). The best interestsof the child are determined by a review of the totality of the circumstances (seeEschbach v Eschbach, 56 [*2]NY2d 167, 171[1982]). In this regard, the court should consider whether the alleged changedcircumstances indicate that one of the parties is unfit, the nature and quality of therelationships between the child and the parties, and the existence of a prior agreement(see Matter of Wilson v McGlinchey, 2 NY3d 375, 381 [2004]; Friederwitzerv Friederwitzer, 55 NY2d 89, 94-95 [1982]). The recommendation of thecourt-appointed expert and the position of the attorney for the child are factors to beconsidered and are entitled to some weight, but such recommendations and position arenot determinative and do not usurp the judgment of the trial judge (see Matter of Nikolic vIngrassia, 47 AD3d 819, 821 [2008]; Matter of Kozlowski v Mangialino, 36 AD3d 916, 917[2007]).
" 'Priority in custody disputes should usually be given to the parent who was firstawarded custody . . . because this policy assures stability in the child's life' "(Matter of Ross v Ross, 96AD3d 856, 857 [2012], quoting Matter of Salvati v Salvati, 221 AD2d 541,542 [1995]; see Friederwitzer v Friederwitzer, 55 NY2d at 94; White v Mazzella-White, 84AD3d 1068, 1069 [2011]; Matter of Russell v Russell, 72 AD3d 973, 974 [2010])."Thus, '[w]hen . . . there is no indication that a change of custody will resultin significantly enhancing the child's welfare, it is generally considered in the child's bestinterests not to disrupt his [or her] life' " (Matter of Ross v Ross, 96 AD3d at857, quoting Matter of Salvati v Salvati, 221 AD2d at 543).
Here, the Family Court's determination that there had not been a change ofcircumstances sufficient to warrant a change in custody was supported by a sound andsubstantial basis in the record and will not be disturbed. The evidence indicates that it isin the best interests of the subject child to remain with the mother, who has been hisprimary caregiver since birth and in whose care the subject child is doing well (seeMatter of Ross v Ross, 96 AD3d at 857-858; Matter of Chery v Richardson, 88 AD3d 788, 789 [2011];Matter of Fallarino v Ayala, 41 AD3d at 714).
However, the Family Court improvidently exercised its discretion to the extent that itgranted that branch of the father's petition which was, in effect, in the alternative, toaward him certain expanded visitation, only to the extent of directing that he havevisitation with the child on alternate weekends from Friday at 6:00 p.m. until Monday at6:00 p.m. and weekly overnight visitation from Wednesday at 6:00 p.m. until Thursday at8:30 p.m. (see Matter ofSolovay v Solovay, 94 AD3d 898, 900 [2012]; Matter of Nell v Nell, 87AD3d 541, 542 [2011]; Matter of Heuthe v McLaren, 296 AD2d 500, 501[2002]; see also Daghir v Daghir, 82 AD2d 191, 193 [1981], affd 56NY2d 938 [1982]). On this record, the best interests of the child would be served byawarding the father visitation with the child on alternate weekends from Friday at 6:00p.m. until Monday at 6:00 p.m., and weekly overnight visitation from Wednesday at 6:00p.m. until Friday at 6:00 p.m. (see Matter of Solovay v Solovay, 94 AD3d at 900;Matter of Nell v Nell, 87 AD3d at 542; Matter of Heuthe v McLaren, 296AD2d at 501; see also Daghir v Daghir, 82 AD2d at 193). Balkin, J.P.,Leventhal, Sgroi and Miller, JJ., concur.